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Introducing the Balanced Bench Project: Examining Representation in the State Judiciary

President Donald Trump just nominated Brett Kavanaugh to replace outgoing Associate Justice Anthony Kennedy.  Soon after, CNN ran an article citing a statistic that, if confirmed, Kavanaugh will be the 108th white man to serve on the Supreme Court (he would be only the 114th justice to ever serve). By contrast, the Census Bureau estimates that in 2017, only 30.8% of the U.S. population were white men. Several news outlets shared this statistic to emphasize the vast underrepresentation of people of color and women on the Supreme Court.

Though representation on the Supreme Court is certainly important— if approved, Kavanaugh may sway major decisions on issues such as abortion rights, the environment, and health care for decades to come— conversations about judicial representation often focus excessively on the most prominent courts. Most of the action in the judicial system takes place not in the Supreme Court or the federal Courts of Appeals, but in the state and local trial courts. Consider the fact that in the 2016/2017 term, the Supreme Court heard only 78 cases. By contrast, 84.2 million cases were filed in state trial courts in 2016. Though very few people will have their case presented before the Supreme Court, nearly 1 in 3 Americans will be charged with a crime at some time in their life; a majority of these crimes are misdemeanors and will be tried in state courts. We at RepresentWomen believe that it is essential to the sanctity of the justice system that the state court bench reflect the population it serves.

Generally, the legal field recognizes the importance of having a jury that is reflective of the population is ruling on. The 6th Amendment guarantees defendants the right to trial by an “impartial jury.” Federal law requires that juries represent “fair cross section of the community in the district or division wherein the court convenes.” The Supreme Court has ruled that excluding potential jurors on the basis of race or gender (the pool of potential jurors is theoretically drawn at random from the population as a whole) undermines the rights of defendants and breaks down trust between the community and the courts.

Judges play an equally if not more important role in the justice system than juries. It follows, then, that the state court bench should reflect the population it serves. Regrettably, this is not generally the case. Tracey E. George and Albert H. Yoon found that, as of 2014, roughly 58% of state court judges are white men, who actually only make up 30% of the U.S. population. Women, particularly women of color, are highly underrepresented. They argue that this underrepresentation on the bench is problematic because a majority of defendants are people of color (according to the Bureau of Justice Statistics, about 70% of felony defendants facing trial in 2009 in the 75 most populous counties in the U.S. were people of color): “As recently as May 2016, the U.S. Supreme Court has found unconstitutional jury-selection practices that produce an all-white jury [...] Yet, the reality is that minority defendants face a nearly all-white trial bench in many states.”

We have touched on the topic of the underrepresentation of women and people of color in the state courts before, but we feel that it deserves more attention than it has received. That is why RepresentWomen is launching the Balanced Bench Project. For the remainder of the summer, we will be posting regularly about various topics related to representation in the state judiciary. Our goal is to raise awareness about the essential role the state judiciary plays in American democracy and to encourage reforms that would achieve fair representation for judges from all backgrounds.

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