“Qualifications” cannot be the only criteria by which we select judges

The five African-American women who have been appointed to state courts by Gov. Jared Polis (Image Credit: Twitter/@Essence, by way of Black Enterprise. Image has been cropped)

How supposedly objective qualifications for judges usually have racial bias built in.

I see a lot of people demanding that “qualifications” be the top requirement for whether someone is selected as a judge or not. And in an ideal world, I’d agree. The problem is that supposedly objective qualifications usually have racial bias built into them.

For example, graduating with a juris doctorate from a top tier law school is often considered a qualification. According to US News and World Report, Yale has the best law school in 2020. If we look at the American Bar Association’s 509 disclosure data for Yale from 2019 (the latest year it’s available), it shows that there were a total of 41 African-American law students out of a total student body of 630. That’s just 6.5%, while African-Americans make up about 13.5% of the US population.

And this is a systemic problem. Stanford (#2 ranked) has 38 African-American students out of 567 total students, or 6.7%. Harvard (#3) is 8%. Columbia (#4) is 9.3%. University of Chicago (#5) is 4.9%.

This means that the supposedly objective qualification of graduating from a top law school is not free of racial bias simply because the law schools are not free of racial bias.

Many other qualifications for being a top lawyer or judge are similarly biased. LSAT scores? Hispanics and African-Americans tend to score lower on those. Membership in law firms? African-Americans were 4.76% of associates and 1.97% of partners in 2019 according to data collected by the National Association for Law Placement. Total law clerks overall? 2.7% are African-American, and only 2% have clerked for federal judges.

The list goes on and on.

So sure, if the culture wasn’t systemically biased against minorities and women, I’d agree that we should rely exclusively on qualifications to determine whether someone should be a judge. But we live in the real world, not some fantasy utopia, and the fact remains that the supposedly objective qualifications themselves are biased. Until that bias is removed, let’s not pretend that race and sex don’t matter in the selection of judges.

[This was originally a Facebook comment on 9/16/2020, but I’ve added links and expanded some areas as well as edited it for clarity.]

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