The Stunning Lack of Diversity on the State Court Bench

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Know the laws in your state that protect LGBT people and people living with HIV.
Maite Oronoz Rodríguez, Chief Justice of the Puerto Rico Supreme Court
Maite Oronoz Rodríguez,
Chief Justice of the Puerto Rico Supreme Court

A. State Courts Must Reflect the Diverse Communities They Serve

In most states, judges simply do not look like the court users who stand before them. While the United States is more diverse than ever, that diversity is not reflected on state courts.

A state judiciary diverse in race, sex, ethnicity, gender identity and expression, sexual orientation and lived and professional experience serves not only to improve the quality of justice, but to boost public confidence in the courts. Judges of different backgrounds help to guard against the possibility of narrow decisions that don’t appreciate factual nuances or the consequences of particular rulings. The absence of judicial diversity results in a biased system that fosters a deserved perception among many segments of our society that the courts are unfair.

Earning the confidence of our diverse society requires access to and full participation in our democratic institutions at the highest levels. When it comes to access and participation, our state judiciaries are failing.

Ten State Comparison of Diversity on the Bench

Courts in many states are overwhelmingly homogeneous. While people of color make up more than 40 percent of the population in 13 states, judges of color account for only 21 percent or less of state judiciaries.1 For example, according to a report by the Center for American Progress, white Alabamians comprise only two-thirds of the total state population, but not one of the Alabama’s appellate court judges is black. Arizona’s population is 40 percent non-white, but racial minorities occupy only 18 percent of intermediate appellate and 16 percent of trial court judgeships.2 When it comes to the courts of last resort in each state, the numbers are even worse. Only 10 percent of state supreme court justices are non-white and only 3 percent are Latino. The Arizona Supreme Court has never had a single black or Latino justice.

Today, a majority of all law students are female, yet women account for just 16-34 percent of the state judiciary.3 This pattern is most visible in state high courts, where women have historically been almost totally absent.4 As a country we are just beginning to correct the historical legacy of exclusion of men of color and all women from the legal profession, and much remains to be done.

B. LGBT Inequality on the State Court Bench

LGBT people and people living with HIV are an integral part of the fabric of America and are entitled to equality and liberty under the law. Judges have decided and will continue to decide important life issues for LGBT people. There is every reason to demand that action be taken so that LGBT people do not continue to be significantly underrepresented on the bench.

The number of LGBT judges in state courts is hard to determine because 49 states do not formally collect data on sexual orientation and gender identity as part of a judicial application and reporting process. There are only two openly transgender judges in the entire country. As far as we know, there are no openly HIV-positive judges and no openly bisexual judges nationwide.

However, out of 340 state high court justices, only 10 identify as openly gay or lesbian. Nine of the ten justices were appointed and all of these appointments were made by Democratic governors.

Spotlight on LGBT Diversity in California State Courts

California is the only state that requires the collection and reporting of demographic data on the sexual orientation and gender identity of state judges. Responding to the questionnaire is voluntary and the identities are kept confidential. The latest LGBT-inclusive report, released in 2015, revealed:

  • Only 1.1 percent of state judges self-identified as gay, 1.3 percent as lesbian, 0.1 percent as transgender and none as bisexual.
  • Of the state's 98 appellate court justices, just one identified as lesbian and one as gay.
  • There has never been an openly LGBT Justice of the California Supreme Court.
  • 44 of California’s 58 counties did not have any openly LGBT judges.

Openly Lesbian Chief Justice on Puerto Rico High Court

Days before retiring from the Puerto Rico Supreme Court, Chief Justice Federico Hernández Denton reflected on his years of service and concluded that one of the decisions he most regretted was his vote in a 2005 case that interpreted Puerto Rico law as preventing individuals who are transgender from amending their birth certificates to reflect their true identities. In April 2014, Lambda Legal sent Governor Alejandro García Padilla a letter urging that when nominating a new justice to the Court or making any other judicial nominations, he ensure that the judicial philosophy of his nominees includes a commitment to rule fairly and impartially in cases involving LGBT litigants and litigants with HIV and to seek thoughtful jurists who reflect Puerto Rico’s rich diversity. In June, 2014, Maite Oronoz Rodríguez was confirmed Associate Justice to the Puerto Rico Supreme Court, marking the first time that an openly lesbian judicial nominee was confirmed to the high court. In 2016, Oronoz Rodríguez was nominated and confirmed as the first openly LGBT Chief Justice in the country.

 


 

1. Ciara Torres-Spelliscy et al., Brennan Center for Justice, Improving Judicial Diversity at 49 (2010).

2. Id.

3. Id.

4. Id.

 

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