San Francisco Superior Court Judges. California is the only state that collects data on minority representation, women's representation, and LGBTQIA+ representation on the bench. Source: Superior Court of California

This post is part of the Balanced Bench project, our ongoing project about representation in the state judiciary. Read our first post about why diversity on the state bench matters here.

In 2016, Tracey E. George and Albert H. Yoon, in conjunction with the American Constitution Society, published a study titled “The Gavel Gap” that found that 69.8% of state judges were men and 80.4% were white. In order to get this data, George, Yoon, and a team of research assistants spent over a year combing through federal court websites, press releases, newspapers, and other resources to create a database of over 10,000 state judges’ biographies. Despite this extensive effort, the finished database is still incomplete. They were unable to find data on the race of about 5% of judges. This database also excludes the nearly 20,000 judges who sit on local and special jurisdiction courts. Furthermore, the database also only reflects the makeup of the bench in 2014; many judges have inevitably retired or been voted out of office in the past four years.

I bring up this study not to belittle the fantastic work George and Yoon did on the project but to highlight an unpleasant reality: it is extremely difficult to find demographic data on state judges. Quite often, that is because the data does not exist. The National Center for State Courts finds that at least 26 states do not collect data on race among trial court judges and at least 20 do not collect data on gender. Many states that do collect demographic data on sitting judges don’t regularly collect the same information from judicial applicants or candidates. States also rarely ask judges about underrepresented identities beyond race and gender: California is currently the only state that collects information about LGBTQIA+ representation on the bench and in the judicial applicant pool.

Why does it matter that this demographic data isn’t collected? Data is the only way to craft a full picture of underrepresentation. If we don’t know what the overall bench looks like, we can only focus on individual judges. To do so would be to miss the forest for the trees.

This data could be especially important for the 26 states that use merit selection, a system where a judicial selection commission approves a shortlist of applicants for the governor to pick from. The Brennan Center argues that holistic data could sway commissioners to change their practices so as to field and select more diverse nominees:

“If no one must account for the levels of diversity at each stage, it is easier for Commissions to overlook the matter and focus only on filling the vacancy at hand. Discovering that applicant pools are nearly all white and male may prompt a Commission to make greater efforts to advertise the next opening to facilitate more female and minority applicants.”

A situation like this played out in Arizona in the 1980s. Women’s and Latinx advocacy groups, who saw that white men were being appointed over applicants of color and women, lobbied the state legislature to change Arizona’s merit selection process. In 1992, Arizona voters approved amendments to the state Constitution that would require that commissioners reflect the diversity of the state and that commissioners consider diversity when selecting nominees. According to the Gavel Gap study, the current Arizona judiciary has the fifth-highest percentage of judges of color, ranking above five states where people of color make up a larger portion of the population.

The applicability of data to judicial elections, the other most common method of judicial selection, is a little less clear. The influence of big money in judicial elections and the winner-take-all system may inherently disadvantage candidates of color and women. However, better data collection may give advocacy groups better tools to push for electoral reform, if the data shows that candidates from marginalized backgrounds are not being elected at similar rates to their white and male counterparts.

Better demographic data has the potential to change judicial selection for the better. This data is also fairly simple to collect. States usually gather extensive data on the types and quantity of cases that pass through state courts. They can use those same agencies that collect caseload data to collect data on judge demographics. California is a good model: it has a provision in its Government Code which tasks the Judicial Council of California with issuing annual demographic surveys to judges and requires that the California State Bar Association, which is already extensively involved in the state’s judicial selection process, compile data on applicants. It is vitally important that states that do not already collect data begin to do so. Better demographic data is the first step toward fair representation in one of the most influential civil society institutions.