Judicial Selection and Racial Diversity:

The Selection of African Americans to State Supreme Courts

Kaitlyn L. SillDepartment of Political Science

Louisiana State University

Paper prepared for presentation at the 2007 Annual Meeting of the Midwest Political Science Association (Chicago, IL). I am incredibly grateful to Kathleen Bratton and Rorie Spill for their generous provision of the data used in this study. However, all analysis, conclusions and mistakes are my own.

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A variety of arguments have been made for the importance of racial representation within

the government. In particular, scholars assert that descriptive representation affects behavior

among the public, elites, and policy outcomes. Much of the research examining descriptive

representation has tended to focus on legislatures, while significantly less attention is paid to

diversity on courts. The few studies that have explored the effect of descriptive representation

among judges have found black justices behave significantly different white judges, specifically

with regards to criminal sentencing (e.g. Steffensmeier 2002).

The question of how courts become diversified has received even less attention. In

particular, few studies have examined the how variations in judicial selection systems impact the

racial diversity courts, and the results from those studies have been conflicting and inconclusive.

Even fewer studies have empirically explored the role that tokenism plays in limiting racial

representation on courts. This paper addresses both gaps in knowledge. Examining the selection

of blacks to state courts of last resort from 1980 to 1997, I first examine whether selection

mechanisms influence the likelihood of a black judge being selected to the bench. Then, to

evaluate whether blacks are limited to token status, I explore the effect existing racial

composition of a court has on the selection of black judges. With this study I hope to expand the

breadth of knowledge on diversity on courts.

Judicial Selection Systems and Diversity

Five formal selection systems are used to select judges to state courts: executive

appointment, Missouri plan or “merit” appointment, legislative election, partisan election, and

non partisan election (Berkson 1980). These formal systems essentially boil down to two broad

categories in which judges are initially selected: appointment or election. Based on prior

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research, I expect that officials appointing judges (governors or selection committees) are more

likely to respond to political pressures to diversify courts than voters (Alozie 1996; Graham

1990; Bratton and Spill 2002). Thus, I anticipate that minority judges are more likely to be

appointed than selected.

A small number of studies have been conducted examining whether selection systems

effect the selection of minorities; however, no consensus has been reached (Githens 1996; Alozie

1996; Goldman 1997). Some studies have found that minorities, both racial and gender, are

more likely to be appointed than elected. For instance, Graham (1990) examined state trial court

judges within 36 states in 1986 and found that black judges were more likely to be selected to the

bench when they were appointed. Similarly, the Fund for Modern Courts (1985) and Bratton and

Spill (2002) find that women were more likely to be appointed rather than elected. On the other

hand, other studies have failed to find any difference in the selection of minorities due to

selection methods. Alozie (1988) found that black judges were no more likely to be selected by

appointment or elections. Further, Alozie (1990) studied the selection of blacks and females to

lower state courts and found no effect of selection mechanisms. Similarly, Alozie (1996) also

examined the selection of women to state courts of last resort and found no effect. Thus, the

studies examining the effect of selection mechanisms are contradictory and inconclusive.

These results are conflicting, in part, due to complications causing variations in

identifying the method with which judges are selected. Each state has a formal system with

which judges are selected; however, oftentimes judges are selected through informal mechanisms

that differ from the expressed, formal system. For instance, in many electoral systems, judges

can be informally appointed when vacancies occur between elections. Thus, the actual method

in which a judge was selected may differ drastically from the formal method. Identifying the

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actual method of selection rather than the formal method is difficult and often times impossible.

As such, a number of the studies of selection systems have examined the formal process of

selection, ignoring the actual method used(e.g. Alozie 1988, 1990). These studies fail to

adequately examine the effect of the actual system used for selection. Other studies identify the

actual way in which judges were selected regardless of the formal system (e.g. Bratton 2002;

Fund for Modern Courts 1985; Graham 1990). This difference in the identification of selection

mechanisms can lead to different findings across studies (Graham 1990).

In addition to the inconsistencies in identifying selection mechanisms, the findings of

previous studies are further limited due to the time in which they were conducted, the later 1980s

and early 1990s. At the time of these studies, racial minorities were just beginning to be selected

to judgeships in significant numbers. As a result, the studies tend to focus on the composition of

courts in a single year and can not control for factors specific to when a particular judge was

selected, such as the current composition of the court. Furthermore, since racial minorities had

yet to ascend to higher court positions, the studies are limited to lower courts in which a

sufficient number of minorities were selected. Focusing on lower courts may diminish the

potential effect of selection mechanisms because lower court judgeships tend to be less

politically salient and less visible. Additionally, since lower court positions tend to be elected

according to districts, controlling for electoral specific characteristics, such as demographic

composition or ideology is not possible, thus the effect of elections may be skewed.

This study compensates for the limitations of previous studies and thus provides a more

comprehensive examination of the effect of selection systems. First, I examine the actual

method in which judges were selected thereby gaining a more accurate measure of the effect of

selection mechanisms than relying on formal systems alone provides. Second, I examine the

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selection of judges to state courts of last resort over a twenty year period. Examining state courts

of last resort is especially useful since the effect of selection systems should be most evident

there due to the high salience and political importance of the seats. State high courts are often

the final arbiters of law since few cases are heard by the US Supreme Court, thus the selection of

those seats has increased political ramification (Alozie 1996; Neely 1981). Furthermore, since

they are often the most visible courts in a state in terms of politics and elections, the information

provided to voters or the political pressures placed on appointing politicians should be at their

apex. Finally, state high court positions are statewide positions, so by examining them, I am able

to control for constituency related factors. With the correction for these limitations of previous

work, I hope to provide greater leverage and insight into understanding the effects of selection

systems on racial diversity.

Tokenism

In addition to providing a more comprehensive analysis of the effect of selection

mechanisms, I examine whether the diversity of courts is limited by tokenism. Diversification of

courts is often perceived to stem from the creation of a “token seat,” such as a “black seat” or a

“female seat” or a “religious seat” (Sciligiano 1971; Baum 1998). This perception is especially

evident in descriptions of the selection of Justice Clarence Thomas as filling the “black seat” left

by Justice Marshall (Dean 2001, 8; Flax 1999, 53). The notion of tokenism serves to limit

diversification by providing a false sense of racial or minority inclusion when, in actuality,

diversification does not extend beyond the “set aside” position(s). Accordingly, while

diversification appears to be occurring when tokenism is in place, in actuality the limited level of

it serves to curtail increased diversification.

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Despite the perception that judicial diversification if limited to tokenism, scholars have

not evaluated the potential affect that current racial composition of a court may have on whether

another minority is selected. Bratton and Spill (2002) examined the effect of tokenism on the

selection of women to state supreme courts. They find that the presence of a female justice

significantly decreases the likelihood that another female is selected, approximately a twenty

percent decrease. Thus, the presence of women as judges appears to be limited to a token status

in which diversification exists only in the extent to which the appearance of it is maintained. I

undertake a similar analysis with regards to racial diversification and examine whether the

presence of a black justice affects whether a black judge is selected. If racial diversity is limited

by tokenism, as with gender diversity, I would anticipate that when a black justice sits on a court,

the likelihood of selecting another significantly declines.

To summarize, in this study I address two questions. First, I examine whether the method

in which a judge is selected influence whether a black judge is selected to a state supreme court.

Second, I examine the role of tokenism in racial diversity by testing whether the presence of a

black justice on a court influences whether another black justice is selected.

Data and Methods

To test the effect of selection mechanisms and the racial composition of a court on the

likelihood of a black being selected to the bench, I utilize data on every justice selected to a state

court of last resort from 1980 to 2002.1 Using the selection of each individual justice as the unit

of analysis, I construct a logit model to determine what factors influence the likelihood that a

black judge is selected to the bench. Thus, the dependent variable is a dichotomous variable

coded ‘1’ if the individual selected to the bench was black and ‘0’ if any other race.

1 Data from Bratton and Spill (2002).

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Selection Mechanism. To test the effect of selection methods, I included a variable

identifying how each justice was initially selected to the bench, regardless of the formal selection

system. Justices that were appointed were coded “1,” and justices that were elected were coded

“0.” If my hypothesis is correct and black judges are more likely to be appointed than elected, I

would anticipate a significant, positive relationship.

Tokenism. To examine the effect of tokenism on the selection of black justices, I

examine whether the presence of one or more black judges on a court influences whether the

justice subsequently selected is black. To test this relationship, each observed selection was

coded for whether, at the time of appointment, one or more members of the court were black.

Judges selected to courts with one or more black justice were coded “1” while those selected to

courts with no black justices were coded “0.” If black representation is limited to token status,

then I would expect a significant, positive relationship.

Time. Since black judges may be more likely to be selected in later years, I include a

control for time by including a variable identifying the year that each justice was selected.

Additionally, I include a number of controls variables in my model that are likely to

influence the selection of a black justice. Unlike most previous studies, I am able to control for

factors with measures taken relatively close to the selection of each individual justice. In

particular, I control for the prestige of the judicial position (length of term and court prestige),

the opportunities for blacks to be selected (number of seats on the court and proportion of

lawyers in the state that are black), and state characteristics (percentage of the population that is

black, liberalism of the state, and region).

Prestige. First, I control for the prestige, or attractiveness, of the position. Studies have

provided some empirical support that minorities and women are more likely to be represented in

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political institutions (e.g. courts, legislatures, mayoral positions) with less prestige (Carol1985;

Diamond 1977; Hogan 2001, Welch 1979). Thus, black judges may be more likely to serve on

less prestigious or attractive courts. To control for this relationship, I include two measures of

court prestige. First, judgeships with longer terms are more attractive than those with shorter

terms because they are more stable, so, for each justice, I included a variable measuring the

length of the term of the seat he or she was selected for.2 Second, to measure the prestige of the

court as a whole, each justice was assigned a value from Caldeira’s (1983) rankings of state

courts corresponding to the state court he or she was selected to.

Opportunities. The likelihood of a black judge being selected to a court should be

influenced by the extent to which they have the opportunity to be selected. The number of seats

on the court and the proportion of lawyers in a state that are black should influence whether a

black individual has the opportunity to be selected to a judicial positions. Larger courts may

have higher turnover and greater opportunities for the selection of black judges (Alozie 1996;

Bratton and Spill 2002). Thus, I include a variable measuring the number of seats on a court and

anticipate that the more seats on a court, the greater the likelihood that a black judge is selected.

Also, the size of the pool of eligible candidates should influence whether a black judge is

selected to a court. Some studies look to the homogeneity of the composition of the legal

profession to explain the lack of minority judges (Graham 1990; Shuman 1971; American

Judicature Society 1973). These studies argue that the primary determinant of the number of

black judges is the number of statutorily qualified black lawyers in a society, and until blacks are

better represented in the legal profession they will be unlikely to ascend to the bench (Graham

1990, 319). To control for this potential explanation, I include a measure of the proportion of

2 Term lengths ranged from 6 years to 19 years or life tenure. The variable is coded as the number of years in a term with terms of life tenure given the value of 20.

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black lawyers in a state.3 I expect that the greater the proportion of black lawyers in a state, the

more likely a black judge is selected.

State Characteristics. Characteristics of each state may also influence whether a black

judge is selected. Across all selection systems, black judges may be more likely to be selected in

states with higher black populations. In election systems, blacks may have a greater chance of

winning with a larger black population. In appointment systems, there may be more pressure on

elected officials to appoint a black justice when the black population is larger (Alozie 1990). To

control for this potential influence, I include a measure of the estimated black population of each

state per year from the State Politics Dataset (State Politics and Policy Quarterly Dataset 2005).4

The ideology of the state may also influence whether or not a black justice is selected. To

control for this I include Berry’s (1998) measure of state liberalism in which higher values

indicate a more liberal state. Finally, studies have shown that blacks are more likely to be

selected to courts in southern states (Alozie 1990; Emmert and Glick 1988). Thus, I included a

dichotomous variable coded “1” if a state is in the south.5

Findings

The rate of selecting black state supreme court justices appears to have been stable over

time. As the graph in Figure 1 illustrates, the selection of black judges has not become more

frequent in recent years. This finding is supported by the multivariate analysis, presented in

3 This measure was derived from the U.S. Department of Commerce, Census Bureau. Since the data is collected every decade instead of annually, each year is assigned the value of the nearest census. Thus, for selections in 1980 through 1984, the 1980 data was assigned. For selections in 1985 through 1994, the 1990 census value was assigned, and for selection in 1995 through 2002, the 2002 data was assigned.4 I also interacted the prestige of the court with the black population because diversity in courts may be more valued within homogeneous states with prestigious hours; the interaction was not statistically significant.5 States classified as being Southern were Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, North Carolina, Oklahoma, South Carolina, Tennessee, Texas, Virginia, and West Virginia based on Census classifications.

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Table 1, which shows that there has been no significant change in the likelihood of a black judge

being selected over time; rather, there has been an insignificant decrease in the likelihood of

selecting a black justice. Part of this lack of change may be due to the small number of black

justice selected to state high courts over the twenty years of this analysis. Of the 637 selections

in 50 states over twenty years, only 45 of the justices selected were black,6 and only 25 states

selected at least one black judge to the bench.7

Turning to our key questions, are black judges more likely to be appointed or elected?

Consistent with other studies on the selection of racial and gendered minorities, I find that black

judges are significantly more likely to be appointed than selected. The results in Table 1

demonstrate that there is a significant, positive effect on the likelihood of a black justice being

selected when he or she is initially appointed rather than elected.

Next, is the selection of black justices limited to tokenism? The results suggest that this

may indeed be the case. The likelihood of a black justice being selected significantly declines

when a black justice already sits on a court. This finding is in line with Bratton and Spill’s

(2002) conclusion that the presence of a female on a court decreases the likelihood that another

female justice will be selected. Thus, once the perception of diversity is met by the presence of a

minority justice, further diversification is unlikely.

For the most part, the control variables tend to behave as expected, with the exception of

court prestige. I anticipated that black judges were less likely to be selected to more prestigious

courts; however, I find just the opposite; black judges are significantly more likely to be selected

the more prestigious a court is. This finding is, however, consistent with Bratton and Spill’s

6 7.1% of justices selected were black.7 These states selected black supreme court justices during this time period: Alaska, Arizona, California, Colorado, Connecticut, Florida, Georgia, Illinois, Indiana, Louisiana, Maine, Michigan, Minnesota, Missouri, Mississippi, North Carolina, New Jersey, New York, Pennsylvania, South Carolina, Tennessee, Texas, Virginia, Washington, West Virginia.

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(2002) findings regarding the selection of women. Furthermore, consistent with other studies on

black representation on courts, I find that the greater the proportion of black lawyers in a state,

the more likely a black judge will be selected. I also find that state characteristics influence the

selection of black judges. Specifically, more liberal states are significantly more likely to select

black judges. Finally, Southern states are significantly more likely to have a racially diverse

court than non Southern states, as expected.

Conclusions

This study has shown that selection mechanisms matter in creating diversity on courts.

Black judges were found to be significantly more likely to be appointed to state high courts than

elected, regardless of the formal selection rules. Additionally, this study importantly also finds

that black judges appear to be relegated to token status since once one black judge obtains a seat

on the court another is significantly unlikely to be selected. This indicates that, in line with

public perceptions, blacks judges are selected to fill a “token” seat, and once that seat is filled, no

further diversity is sought.

These findings present three interesting questions for future research. First, are these

findings applicable to other racial minority groups such as Latinos and Asians? In other words,

are Latinos and Asians also more likely to be appointed than election? Are they similarly

relegated to token status? Very little work has been done examining what factors effect the

selection of judges from other minority groups; however, similar influences could be at play.

Also, is the token seat status on courts set aside for a minority justice in general or is there a

“seat” for each minority group. In other words, does the presence of a black judge decrease the

likelihood that a Latino or Asian is selected to the bench?

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Another important question is whether the effect of existing diversity applies only to the

initial stages of diversification and decreases once a level of heterogeneity is achieved. In other

words, the selection of a second black judge may be significantly affected by the presence of a

single black judge; however, is the selection of a third black judge equally affected? To address

this question, the selection to lower courts would have to be examined because, to date, no high

court has more than two black judges.

A third important question from these finding is how token status affect the behavior of

minority judges. Significant research has been done on legislators and has found that women

and minorities behave differently when the serve in small numbers than when they serve in

larger numbers. Thus, it would be interesting to examine whether minority judges behave

different when they are the single minority than when there are two or more.

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Tables and Charts

Figure 1. Selection of Black State Supreme Court JusticesPer Year, 1980-2000

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Table 1. Logistic Regression of the Likelihood of Selecting a Black Individual to State Courts of Last Resorta

Dependent Variable: Black Justice Selecteda 1980-200b Includes appointment by governor and judicial nominating committee.* p < .05, one tailed test** p < .01*** p < .001

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Independent Variables Parameter Estimate(Standard Error)

Term -.008(.027)

Justice Appointedb 1.118**(.429)

Black Justice on the Court -1.619***(.443)

Position Prestige

Length of Term .004(.076)

Prestige of Court .005**(.002)

Opportunity and Eligibility

Size of Court .027(.165)

Proportion of Lawyers that are Black .256**(.084)

State Characteristics

Percentage of Population that is Black .003(.009)

State Liberalism .029*(.017)

Southern State 1.997***(.518)

Constant 10.040(54.093)

Number of Justices Appointed (N) 633