Diversifying the Courts: Race, Gender, and Judicial Legitimacy

241 Pages·2023·2.668 MB·English

by  Nancy Scherer

Diversifying the Courts

Diversifying the Courts
Race, Gender, and Judicial Legitimacy
Nancy Scherer
NEW YORK UNIVERSITY PRESS
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Contents
Preface: The Sonia Sotomayor Nomination ix
Introduction: Why Do U.S. Presidents Pursue (or Not Pursue)
the Goal of Diversity to Choose Federal Judges? 1
1. A Brief History of Diversity on the Federal Bench 11
2. Why Democrats Support Diversifying the Courts 25
3. Why Republicans Oppose Diversifying the Courts 41
4. Sitting Judges Discuss Diversity 58
5. Diversity, Party Identification, and Political Legitimacy 73
6. Legitimacy and Gender Diversity on the Bench 88
7. Legitimacy and Racial Diversity on the Bench 104
8. Legitimacy and Descriptive/Substantive Representation 118
9. Legitimacy and Party Identification 126
Conclusion: The Legitimacy of the U.S. Courts Is
under Attack 139
Acknowledgments 149
Appendix A: Methods 151
Appendix B: Mock Newspaper Articles 157
Appendix C: Full Regression Models 173
Notes 185
References 199
Index 217
About the Author 223

Preface
The Sonia Sotomayor Nomination
For centuries, dating back to the George Washington presidency, poli-
ticians have used federal court nominations to advance the political
causes that they and their allies hold dear (Maltese 1995).1 In the twen-
tieth and twenty- first centuries, it has fallen largely to the judiciary to
resolve the highly divisive political issues surrounding race, ethnicity,
and gender (Rosenberg 1994). In an environment where judges rule on
these crucial policy debates, fierce partisan battles over who will sit on
the federal courts are inevitable. The Sotomayor story illustrates this
state of affairs quite effectively because it highlights the acrimonious
and partisan nature of diversity appointments to the federal courts. The
Sotomayor confirmation proceedings provide a good illustration of what
the confirmation process looks like for minority and female nominees.
Only three months into his presidency, Barack Obama had his first
opportunity to name a Supreme Court justice when, on April 20, 2009,
Justice David Souter announced he would retire. As occurs with most
Supreme Court vacancies, speculation immediately began among legal
and political elites about whom the president might choose as Souter’s
replacement. Although initial statements from the White House sug-
gested the president would not be ready to name Souter’s successor until
October (Associated Press 2009b), President Obama reached a decision
much sooner. On May 26, 2009, he announced that he would nominate
Sonia Sotomayor. If confirmed, she would be the first Hispanic Ameri-
can to serve on the Supreme Court.
During the 2008 presidential campaign, Obama had made clear what
criteria he would apply in choosing a nominee. He said he would look
for judges who were “empathetic”— meaning, he indicated, that they had
struggled in life: “We need somebody who’s got the heart, the empa-
thy, to recognize what it’s like to be a young teenage mom, the empathy
ix