In addition to the factors we pointed out as relevant in evaluating the Sotomayor Supreme Court nomination, recent studies provide some additional insight into the impact of minority judges just in time for consideration of Kagan’s SCOTUS nomination.
The ABA Judicial Division reported this spring on two studies conducted by the University of Pittsburgh School of Law and Carnegie Mellon University’s Tepper School of Business, one of which examined 40% of reported racial harassment cases from six federal circuits from 1981 to 2003 while the other reviewed over 500 Title VII sexual harassment and sex discrimination cases. In the second study, plaintiffs were at least twice as likely to win if a female judge was on the appellate panel.
In the racial harassment cases, African-American judges were significantly more likely to find for plaintiffs (46%), compared to Hispanic (19%), white (21%) and Asian American (33%) judges, a finding which both supports and refutes the idea that those who have experienced being a racial minority may be more sympathetic to minority plaintiffs. While Kagan is Jewish and results for that ethnicity were not reported, the general conclusion remains that diversity breeds diverse trends.
Does this mean that the law is so variably applied as to preclude justice?
One of the authors of the study, Professor Pat Chew, takes the position that the rule of law in these cases remains intact—all judges, regardless of their own profile, took the same procedural steps to reach their decisions, while taking different approaches to interpreting the facts. She compared these disparate results to those obtained when controlling for judges’ political affiliation—a factor that also significantly affects outcomes.
In a federal court system where 20% of judges are women and 15% are members of minorities, the decisions currently being made are obviously more reflective of those of white males than the spectrum of American ethnicity and gender. But in an increasingly diverse world, that is likely to change.
These kinds of studies always segue into an examination of the feeder systems for the judicial system—law firms across the country. The stats there, particularly as a result of the Great Recession of 2009, are not encouraging for the future. While large firms lost about 6% of their total lawyers in 2009, 9% of Asian-Americans, 9.7% of Hispanics and an astounding 13% of African-Americans (and 16% of African-American non-partners, or roughly 1 in 6), lost their lawyering jobs there. While some firms have been able to register gains (see “Diversity Scorecard 2010”), these statistics on overall loss of diversity show what a major setback has occurred in those firms where the resolve to improve law firm diversity is fragile. See “Law Firms Must Act to Offset Diversity Setbacks.”
At a time when the number of non-whites in the workplace will start to outstrip whites, building an environment that acknowledges and addresses the challenges that diversity presents is a priority for all firms. Understanding differences in the “interpretation of facts,” as the studies above noted, is an important part of understanding diverse perspectives—and succeeding in court.
Another factor that invariably impacts the rise of minority lawyers is a firm’s compensation system, and specifically origination credit. We already are documenting the difficulty that women partners have in capturing their share of origination. See “Female Partners Bullied Over Compensation.” Helping minorities and women realize their share of law firm success in the increasing diverse world where firms will be forced to operate should be on every firm’s agenda.