With Diversity Pledge, President May Give New Look to US Courts
Analysts say new women, minority judges will have most impact on changing areas of law, such as sexual harassment, abuse of women
WALK into any federal court, and the likelihood of seeing a white male at the bench is 8 in 10. Only 10 percent of federal judgeships are held by women; only 9 percent are occupied by blacks and Hispanics.
But if President Clinton's campaign speeches - in which he pledged to make "diversity" a key criterion in court appointments - are any indication, the days of the old-boy benches are numbered. The president has an unprecedented opportunity to overhaul the look of the federal bench - and, possibly, the nature of the opinions handed down.
Mr. Clinton is the first Democratic president to appoint a justice to the United States Supreme Court in 25 years. And he is said to be considering a number of women and minorities - including Judge Ruth Bader Ginsburg of the District of Columbia appeals court and US District Court Judge Jose Cabranes of Connecticut - to fill the seat being vacated by Justice Byron White, a white male.
The president's impact on the federal bench - which, though lower profile, issues far more opinions - will be even more pronounced: There are a record 121 vacancies in the federal courts, about 1 of 7 seats on the bench.
Now that the president is poised to translate his "diversity" philosophy into Supreme Court and federal court appointments, many legal scholars are trying to figure out what diversity in the courts will actually mean. Will sex and gender change the way the law is interpreted? Do female judges write different opinions from men on, say, sex discrimination issues? Do black or Hispanic judges tend to rule in favor of plaintiffs in civil rights cases?
"It will be more egalitarian," predicts Joan Dempsey Klein, presiding judge of California's Second District Court of Appeals. "It will be more open. There will be more questions about some of the old standards that have been accepted over the years."
But conservative critics say that diversity means putting a liberal political bias in the courtroom. "The easiest way for the administration to get its political agenda through is through appointments to the courts," says Marianne Lombardi of the conservative Free Congress Foundation in Washington. Ms. Lombardi adds that in making gender and race an unspoken qualification, the administration is "cutting itself out" of some of the most experienced candidates - white males.
Surprisingly few studies have looked at how race or gender affects the outcome of rulings. The few studies on judicial opinions tend to concentrate on party affiliation - and even those suggest that decisions by women and minorities do not radically differ from those of white men.
"A good judge is a good judge, and generally race or gender doesn't make any difference," says Elaine Martin, a political scientist at Eastern Michigan University. "But on the cutting edge of the law, where things are changing, it's more uncertain, then I think you'll see that when women or minorities are present, there's a different perspective."
Professor Martin came to that conclusion after surveying 1,200 state and local judges - half men, half women. She asked them how they would decide five hypothetical court cases that involved women's rights: maternity leave, teenage abortion, divorce settlements for "homemakers," sexual harassment, and damages for battered women. Differences on harassment
In cases involving battered women - where the law is being transformed - 65 percent of female judges ruled in the woman's favor, versus 44 percent of the men. On teen abortion and sexual harassment, there was a 14 percent gap. And in more familiar legal territory - divorce settlements and maternity leave - male and female judges were equally likely to rule in the woman's favor (more than 85 percent for the woman).
What the statistics don't capture, says Judge Klein in California, is the growing influence of women as they attain higher positions. At the lower court level, judges have little latitude, and tend to make their decisions based on precedent. But as women move up the judicial ladder, she says, they begin to bring their own experiences as women to the bench.
"And by the time a woman reaches the [state] Supreme Court, or the courts of appeal, where I sit, they have much more self-confidence about what they can do," Klein says, adding that her two male colleagues on the bench regard her as their "conscience." "A woman feels that this is the end of my career, and so I'm going to make the most of it. I'm going to have as much impact on this judicial system as I possibly can."
When it comes to minority judges, even less research has been done. But James Graves, a black circuit court judge in Mississippi, says race is always a factor when he puts on his robes.
For example, Judge Graves says magistrates often give a lighter sentence to a defendant who has a support system that can help him or her rehabilitate. Graves says often a white teenager will be accompanied by his mother and perhaps a church pastor at his sentencing hearing. However, a black juvenile will often come alone - not because he doesn't have a family, but because the mother can't take time from work. And that, Graves says, is something a white judge might not think about.
"Nobody wants to make excuses for criminal defendants, but what everybody ought to desire is a system that says, if a white man steals a car and gets five years for it, then a black man who steals a car ought to get five years for it," Graves observes. "And I think having African American judges in the judiciary brings a certain sensitivity and a sense of how devastating injustice can be." Changing courtroom atmosphere
It is a sensitivity, says Robert McDuff, a criminal defense and civil rights attorney in Jackson, Miss., that is beginning to affect not just opinions and sentences, but the tone of the courtroom. In the South in particular, white judges historically have presided over predominantly black districts, creating an ambience in which not just black defendants, but some witnesses and jurors had the feeling that the system was stacked against them, Mr. McDuff says.
"When you walk into a courtroom day after day, and the judge is white, in the midst of a multiracial society, you're gonna get a sense that something's wrong here, something's unfair," McDuff says.
If President Clinton follows through by increasing the number of black and Hispanic judges, he says, "that sense of injustice will undoubtedly lessen."