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Debating Voting Issues, Representativeness, and Reforms

Do Our Judges "Represent" the People?

Source: Barbara A. Perry, "Can the Judiciary Be 'Representative'?" Insights on Law & Society 2.1 (fall 2001).

The American people elect our president, vice-president, and members of Congress. We talk of these public officials as representing the people—at least, that is an ideal we hold. Judges are a different matter. Presidents nominate people for appointment to the Supreme Court and other federal judgeships.

Ideally, judges are most often thought of as being entirely neutral in the cases that come before them. Nothing can keep them from arriving at a fair verdict as they follow and apply legal precedents to the facts in a case. Their personal, political, and ideological backgrounds do not influence their decisions.

Various criteria have shaped presidential decision-making in judicial appointments. Merit is one criterion—for example, the Justices on today's Supreme Court have all earned superb educational backgrounds from the nation's most distinguished universities. All presidents have also searched for jurists that would be ideologically and politically compatible. Personal or professional friendship has influenced some appointments.

One of the most interesting standards presidents have used in selecting judicial nominees is representativeness. This term is usually thought of relative to members of Congress—public servants who are partial to the concerns of the constituencies that put them into office. If judges are impartial, how can this term be applied to them? Will judicial nominees who represent specific groups remain neutral once their appointments are confirmed?

Judges as Symbols
Some theorists answer yes. Judges can stand as symbols for people in the sense that they have some sort of resemblance to them; however, this does not mean that they would decide cases in favor of those people. Doing so would be a form of the active representation of constituents that we expect and even demand from members of Congress but not from judges.

At the same time, judges can passively represent parts of the population. For example, there is a large number of Asian Americans in California, and a proportionally large number of federal judges of Asian heritage there reflects this segment of the state's population. Women have historically been underrepresented on the bench, which has been the focus of vigorous criticism for many years, fueling demands for more females on the bench all over the nation.

Examples of the representative characteristics presidents have most widely used in nominating U.S. Supreme Court justices are geography, religion, race, and gender. Every president from George Washington to Ulysses S. Grant used geography for a variety of reasons that included rewarding a state for electoral support, assuring a state or region that its concerns would be protected, and making the Court reflect the population of the nation's states and regions.

Religion, race, and gender—social characteristics of nominees—often indicated that presidents wanted to assure new and/or marginal groups in society that he cared about their concerns. The more constituencies the Supreme Court reflected, the more its legitimacy would increase in the eyes of these groups. In the twentieth century, a "Catholic seat" and a "Jewish seat" emerged on the Supreme Court. Some say that a "Hispanic seat" will emerge if President George W. Bush gets to nominate a Supreme Court Justice. There are only nine Justices on the Supreme Court, and it can accommodate only so many symbolic appointments. If there's a Hispanic seat, should there be an Asian seat?

Symbolic appointments are not without their own surprises. Among recent justices who have served on the Supreme Court, Justices Brennan and Scalia, both devout Roman Catholics, voted completely oppositely on the abortion issue, with Brennan supporting a woman's right to choose and Scalia opposing a right to abortion. Clarence Thomas, who succeeded Thurgood Marshall—a hero of the civil rights movement—opposes affirmative action, among other efforts to promote minority interests that Marshall endorsed. His nomination actually embittered the African-American constituency the first President Bush was trying to woo by nominating him.

Justice Sandra Day O'Connor, a moderate conservative on most issues, actively represents women's interest in her jurisprudence, as does Ruth Bader Ginsburg, who is considered one of the most liberal justices. In gender-case votes, O'Connor nearly always represents the liberal position promoting women's causes.

Lower Court Appointments
In the lower federal courts, the issue of judicial representativeness emerged during Jimmy Carter's presidency from 1977 to 1981. Carter vowed to make the U.S. District courts and the U.S. Courts of Appeals more reflective of traditionally unrepresented minority groups and women. The 1978 Omnibus Judgeship Act, which created 152 new federal judgeships, aided his efforts. He named more black federal judges than the combined total of all his predecessors—37—and he nominated 40 women. Of President Reagan's 346 nominees to the federal courts in his eight years in office, 7 were black and 28 were women. The first President Bush, during his one term in office, named 12 blacks and 36 women. Bill Clinton's eight-year administration followed with 61 blacks and 107 women.

Rejections of Supreme Court nominees are hot news, yet only five nominees were rejected in the Twentieth century. The trend in lower court nominations has been for the Senate to make the confirmation process take longer. During the Nixon era, judicial nominees could expect final Senate action on their cases within about a month from the time the president submitted their names. Since then, some nominees have waited over four months for the Senate to take action on their appointments. Both political parties have engaged in delay tactics that have blocked nominations, especially at the end of an opposing president's term. Concerns that vacancies on the federal judiciary will undermine the quality of justice have come from many quarters including Supreme Court Chief Justice Rehnquist.

The judicial appointments logjam carried over to the George W. Bush administration in 2001. As a Texas Republican whose party is actively courting the growing Hispanic population, he will face pressure not only to name the first Hispanic to the Court, but to increase the proportion of Hispanics appointed to the federal bench, where relatively few Hispanic judges now hold positions—in 2001, only 33 out of 821 judgeships.

The judicial appointments debate will address the merits of judicial activism versus those of judicial restraint. Judges accused of being judicial activists are seen as straying from the exact words and "clear" meaning of the Constitution and laws to impose their own sense of what the law means. On the other hand, judges viewed as models of judicial restraint attempt to construe law strictly and literally according to the Founders' original intentions. Neither approach is exempt from criticism. Judges by definition need to exercise restraint. At the same time, if in 1954 the Supreme Court hadn't been able to overturn its own decision in Plessy v. Ferguson (1896), our public facilities—and our nation—might still be segregated.

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