Minority Judges Research Articles

Sacrificing Diversity for 'Quality': How Judicial Performance Evaluations are Failing Women and Minorities

Because voters rely on judicial performance evaluations when casting their ballots, it is important that policymakers work diligently to compile valid, reliable and unbiased information about our sitting judges. This paper analyzes attorney surveys of judicial performance in Nevada from 1998-2008. The survey instrument is similar to those used throughout the country for judicial evaluation programs. Unfortunately, none of the readily-obtainable objective measures of judicial performance can explain away difference in scores based on race and sex. Minority judges and female judges score consistently and significantly lower than do their white male counterparts, all other things equal. These results are troubling, but consistent with the hypothesis that judicial performance evaluation surveys carry with them unexamined and unconscious gender/race biases.

Reflections in Response to the Nevada Judicial Evaluation Pilot Project

Our colleagues at the University of Nevada Reno, the authors of the Nevada Judicial Evaluation Pilot Project: Final Report (NJEPP Report) and the Nevada Judicial Evaluation Project: Supplement to the Final Report (NJEP Supplement), have done an admirable job of setting up a framework for a workable program. They succeed in identifying key components for a successful judicial performance evaluation (JPE) program for Nevada. In the spirit of collaboration, and because of our good faith interest in making sure that Nevada’s JPE system is as fair as it can possibly be, we wish to supplement the NJEPP Report’s findings with some additional reflections on creating a system that meets the Commission’s goals.Our key observations are as follows: 1) there is a potential for bias in any judicial evaluation program. Steps must be taken to mitigate this possibility, 2) the survey respondent groups must be carefully identified, and instruments must be sensitive to the strengths and weaknesses of the assessments from each group, 3) because response bias is likely to lead to unreliable results, steps must be taken to boost the response rates of the various respondent groups, 4) care must be taken when aggregating the survey data, as implicit value judgments are made whenever averages are computed, 5) the process of creating, implementing, interpreting and utilizing judicial evaluation data will require many different groups of actors. The roles of these groups must be clearly delineated, 6) the use of state-sponsored JPEs in contested judicial elections is unprecedented. The use of such a program in this context raises critical issues of fairness and threatens the integrity of the electoral process, 7) female and minority judges are the most likely to be evaluated harshly, even when the JPE system is well designed, because of unconscious biases. In the interest of fairness, questions that are the most likely to bring into the evaluation process unconscious biases should be either eliminated or weighed less, and 8) The Commission should consider creating a system whereby each piece of information is weighted systematically and a priori. Putting more weight on objective measures (e.g., ethical complaints filed against a judge, record of whether a judge has been overturned by a superior court, and number of cases handled) may help to alleviate some of the potential for bias and unfairness.

The World, through the Judge’s Eye

Constitutional interpretation is increasingly performed on a world stage, as judges refer to international and comparative law as a relevant - but not binding - source of law. Yet the practice is an uneven one, with some courts - and some judges - being more open to international engagement than others. This disparity unsettles the conventions of the judicial role, such as decision-making by majority when its members disagree. In a telling example, Justice Michael Kirby of the High Court of Australia was often alone and in dissent when citing international and comparative law, especially when interpreting the Australian Constitution. The Australian example demonstrates the way in which references to foreign law allow minority judges to introduce a new quantity - a new plurality - of informal judicial support. The article goes on to outline constitutionalism as a model of international engagement that justifies this technique. It contrasts this model with the alternative justifications of internationalism and judicial worldliness, two models that are less able to resolve questions of authority and relevance.

The World, through the Judge's Eye

Constitutional interpretation is increasingly performed on a world stage, as judges refer to international and comparative law as a relevant - but not binding - source of law. Yet the practice is an uneven one, with some courts - and some judges - being more open to international engagement than others. This disparity unsettles the conventions of the judicial role, such as decision-making by majority when its members disagree. In a telling example, Justice Michael Kirby of the High Court of Australia was often alone and in dissent when citing international and comparative law, especially when interpreting the Australian Constitution. The Australian example demonstrates the way in which references to foreign law allow minority judges to introduce a new quantity - a new plurality - of informal judicial support. The article goes on to outline constitutionalism as a model of international engagement that justifies this technique. It contrasts this model with the alternative justifications of internationalism and judicial worldliness, two models that are less able to resolve questions of authority and relevance.

Judges on Trial: A Reexamination of Judicial Race and Gender Effects Across Modes of Conviction

Extant research on the effects of judicial background characteristics suggests minimal influence from the race or gender of the sentencing judge in criminal cases. This raises at least two possibilities: 1) the combined influence of judicial recruitment, indoctrination and socialization into the judgeship results in a homogenous body of criminal court judges, or 2) current approaches to identifying judge effects in criminal sentencing have methodological and conceptual flaws that limit their ability to detect important influences from judicial background characteristics. The current paper argues that the mode of conviction shapes the locus of sentencing discretion in ways that systematically underestimate judge effects for pooled estimates of incarceration and sentence length. The empirical results support this interpretation, especially for incarceration in trial cases, where older, female, and minority judges are substantially less likely to sentence offenders to jail or prison terms.

Ideology, Geography, and the List of Minor Judges

This article proposes that the list of the minor judges found in Judg. 10.1-5 and 12.7-15 originated as an anti-monarchic scribal construction composed in the territory of the Northern Kingdom. The list reflects an anti-monarchic ideology and was modeled on the scribal conventions for summarizing royal succession that appear in the regnal formulas in the book of Kings. It locates the minor judges in the territory of the northern tribes outside of Ephraim.

‘Killing Three Birds with One Stone’? The Preliminary Objections Judgments of the International Court of Justice in the Legality of Use of Force Cases

The ICJ in its judgments on the preliminary objections in the Legality of Use of Force cases held that it had no jurisdiction to hear the claims. Despite the unanimous concurrence in that result, it is clear that there were deep divisions within the Court as to the ground on which that decision should have been reached; only a bare majority subscribed to the reasoning that the Court was required to rule on the question of its jurisdiction ratione personae in relation to Serbia and Montenegro's uncertain status within the United Nations prior to 2000. The minority judges were highly critical of the choice of that basis of decision, in particular given its apparent implications for other cases pending before the Court.

Diversifying the Federal Bench: Presidential Patterns

In this study of all federal district court appointments from 1977 through 2004, we examine a variety of possible influences on the selection of women and minorities to the federal bench. We find that women and minorities are more likely to be appointed to relatively large courts and to courts that have relatively few female or minority judges. The pool of eligible candidates also has a substantial and significant influence on the likelihood that a minority judge will be appointed. We find that political factors such as state ideology or the partisan composition of the U.S Senate delegation from the state have little influence. We conclude that presidents take race and gender into consideration when making judicial appointments and are particularly interested in diversifying relatively homogeneous courts; moreover, large courts may offer an opportunity to diversify with relatively few trade-offs in representation of other groups or interests.

Institutional Dynamics on the U.S. Court of Appeals: Minority Representation Under Panel Decision Making

This article assesses how the institutional context of decision making on three-judge panels of the federal Court of Appeals affects the impact that gender and race have on judicial decisions. Our central question is whether and how racial minority and women judges influence legal policy on issues thought to be of particular concern to women and minorities when serving on appellate panels which decide cases by majority rule. Proper analysis of this question requires investigating whether women and minority judges influence the decisions of other panel members. We find that the norm of unanimity on panels grants women influence over outcomes even when they are outnumbered on a panel.

The M/V Saiga: the First Case in the International Tribunal for the Law of the Sea

The International Tribunal for the Law of the Sea (ITLOS—“the Tribunal”) heard its first case at the end of 1997.1 A remarkable split judgment, which saw both the President and Vice-President of the Tribunal joining the minority judges in recording persuasive dissenting judgments, struck a harsh and discordant note, regrettable in what should have been an auspicious debut.

Apart from Us or a Part of Us? Immigrants' Rights, Public Opinion and the Rule of Law

On 24 February 1997, the High Court handed down its long-awaited ruling in the case of Applicants A and B v Minister for Immigration and Ethnic Affairs. The applicants were a married couple from a remote village in the Peoples' Republic of China (PRC) who came to Australia by boat in December 1993. The wife was heavily pregnant and gave birth to the couple's first child the day after arrival. The couple claimed that one or both of them would be forcibly sterilised if returned to China because of the prevailing 'one couple, one child policy. This article uses the case of Applicants A and B to explore the extent to which cases involving migrants and refugees are being treated differently from those in which the human rights of Australian citizens are affected. The author attempts to identify some of the external factors that may have influenced the Court. The study acknowledges that the High Court's ruling can be analysed on a purely doctrinal level so as to place it within the matrix of international jurisprudence relating to the interpretation of the 1951 Convention. However, the very fact that the Court divided so evenly in its interpretation of the phrase 'particular social group' suggests that the case cannot be explained purely in terms of text or jurisprudential trend. The second part of the article examines the recent history of refugee determinations in Australia, outlining the changes that have occurred in both the treatment of refugee claimants and in public attitudes towards and sympathy for these people. The case of Applicants A and B is then analysed in its jurisprudential context by comparing the reasoning of the majority and minority judges with the rulings made in other jurisdictions. There follows a critique of both the decision and of the factors that at the very least find resonance in the majority's reasoning. The final part of the paper looks at the totality of the challenge presented by fugitives of China's one child policy and at the options available to the government to meet this challenge.

Apart from us or a part of us? Immigrants' rights, public opinion and the rule of law

On 24 February 1997, the High Court handed down its long-awaited ruling in the case of Applicants A and B v Minister for Immigration and Ethnic Affairs. The applicants were a married couple from a remote village in the Peoples' Republic of China (PRC) who came to Australia by boat in December 1993. The wife was heavily pregnant and gave birth to the couple's first child the day after arrival. The couple claimed that one or both of them would be forcibly sterilised if returned to China because of the prevailing 'one couple, one child policy. This article uses the case of Applicants A and B to explore the extent to which cases involving migrants and refugees are being treated differently from those in which the human rights of Australian citizens are affected. The author attempts to identify some of the external factors that may have influenced the Court. The study acknowledges that the High Court's ruling can be analysed on a purely doctrinal level so as to place it within the matrix of international jurisprudence relating to the interpretation of the 1951 Convention. However, the very fact that the Court divided so evenly in its interpretation of the phrase 'particular social group' suggests that the case cannot be explained purely in terms of text or jurisprudential trend. The second part of the article examines the recent history of refugee determinations in Australia, outlining the changes that have occurred in both the treatment of refugee claimants and in public attitudes towards and sympathy for these people. The case of Applicants A and B is then analysed in its jurisprudential context by comparing the reasoning of the majority and minority judges with the rulings made in other jurisdictions. There follows a critique of both the decision and of the factors that at the very least find resonance in the majority's reasoning. The final part of the paper looks at the totality of the challenge presented by fugitives of China's one child policy and at the options available to the government to meet this challenge.

Enforceability of the Right to Reply or Correction (Articles 14(1), 1(1) and 2 of the American Convention on Human Rights)

336Human rights — Expression, freedom of — Right of person injured by inaccurate or false statements communicated to the public to reply or publish a correction — American Convention on Human Rights, 1969, Article 14(1) — Relationship to Articles 1 and 2 — Whether States required to legislate to guarantee rightTreaties — Interpretation — Ordinary meaning of words — Context — Object and purpose of treaty — American Convention on Human Rights, 1969, Article 2International tribunals — Competence — Procedure — Inter-American Court of Human Rights — Advisory jurisdiction — Scope — Request for opinion regarding application of Convention in national law inadmissible — Majority decision that request as a whole admissible — Whether minority judges required to vote on merits

The Diversification of the Federal Bench: Policy and Process Ramifications

Considerable debate has been generated regarding the impact of President Carter's appointment of record numbers of female and minority judges to the lower federal courts. Using a "matched pair" research strategy, this study empirically examines the policy and process consequences of adding large numbers of nontraditional judges to the U.S. District Court bench. Few differences were discovered between black and white judges. However, female judges tended to be less supportive of personal rights claims and minority policy positions and more sympathetic to economic regulation than were their male counterparts. Female judges displayed a distinct pattern of deferring to positions taken by the government. No substantial male/female or white/black differences emerged on three measures of decision-making quality.

The "Minor Judges": A Re-Evaluation

The "Minor Judges": A Re-Evaluation

Dissent on the Supreme Court, 1943–44

During the 1943–44 term of the Supreme Court, public attention was attracted to that body on several occasions by verbal exchanges in decisions of the Court which seemed unusually sharp and personal. On January 3, 1944, Justices Black and Murphy admonished Justice Frankfurter that “for judges to rest their interpretation of statutes on nothing but their own conceptions of ‘morals’ and ‘ethics’ is, to say the least, dangerous business.” In another opinion on the same day, the same two judges referred to “what is patently a wholly gratuitous assertion as to constitutional law in the dissent of Mr. Justice Frankfurter.” In the Magnolia Petroleum Co. case, Justice Jackson observed that the minority judges were apparently willing to enforce the full faith and credit clause “only if the outcome pleases….” Justice Murphy told the Court on one occasion that it was “rewriting” a criminal statute, Justice Jackson called the decision bringing insurance under the Sherman Act a “reckless” one, and Justice Roberts several times waxed sarcastic about the disregarding or over-ruling of precedents. “This tendency,” he said, “indicates an intolerance for what those who have composed this court in the past have conscientiously and deliberately concluded, and involves an assumption that knowledge and wisdom reside in us which was denied to our predecessors.” It is not surprising that the newspapers translated these disagreements into personal terms and began to write about the “feud that was smoldering behind the Grecian columns of the white marble court building.”There are many reasons for not taking such accounts too seriously. Thomas Reed Powell has wisely warned “laymen … not to draw too broad conclusions from any reportorial propensity to play up judicial disagreements as contests like those in war or sports.” Disagreement is no new thing on the Court. The faultless phrasing of the Holmes dissents may have raised to a higher plane, but did not conceal, differences as sharp as any evident during the past term.