Lambda Legal Report Finds Judicial Elections and Lack of Diversity on State Courts Threaten LGBT Rights

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Explosion in Judicial Campaign Spending Undermines Impartiality of Courts, Gives Way to Decisions Increasingly Driven by Ideology
September 28, 2016

(New York, NY) – A new report published today, Justice Out of Balance, finds that the election of judges and stunning lack of diversity on state courts threaten the rights of the lesbian, gay, bisexual and transgender (LGBT) community. The report, which was published by Lambda Legal, examines all cases involving LGBT issues in state high courts since 2003.

The study finds that courts whose judges stand for election are less supportive of LGBT rights. High courts with partisan elections supported a pro-LGBT claim in only 53 percent of cases; where judges were appointed and never stand for election, courts ruled in favor of LGBT rights in 82 percent of cases. Moreover, the results suggest that the ideology of justices was a primary factor in courts’ rulings on LGBT rights, with ideology playing a larger role when judges are subject to competitive elections.

“Judicial elections are putting LGBT equality – and our country’s very democratic principles – in increasing danger,” said Rachel B. Tiven, CEO of Lambda Legal, the nation’s oldest and largest legal LGBT organization. “Queer people across the country are seeing their constitutional rights and liberties thrown out the window by judges beholden to special interest groups.”

The negative impacts on LGBT rights from judicial elections are exacerbated by the serious lack of judicial diversity in U.S. courts. The report finds that:

  • Of 340 currently-serving state high court justices, only 10 identify as openly gay or lesbian – and all of them were initially appointed to the bench
  • There are only 2 transgender judges in the country, and there are no openly bisexual judges
  • In state appellate courts, white males are overrepresented by nearly double their proportion of the national population
  • While a majority of law students are female, nowhere do women account for more than 34% of state judges – and in some states as few as 16%.

“The United States is more diverse than ever, yet our nation’s courts are painfully homogenous,” said Eric Lesh, Lambda Legal Fair Courts Project Director and author of the report. “This lack of diversity results in a biased system – both in perception and reality. For our courts to render fair decisions and be seen as legitimate, they must reflect the rich diversity of the communities they serve.”

The report comes as judicial campaign spending has exploded in recent years, further affecting the impartiality of courts. Recent studies reveal that this flood of money in judicial races causes judges to issue more pro-business rulings, send more people to jail and sentence more people to death, among other effects. More than three out of four Americans believe that campaign cash affects court decisions, and roughly half of judges agree.

“The problem with judicial elections is that judges should not be politicians,” added Tiven. “By design, judges are supposed to decide individual cases based on the law and the facts in front of them. Each day, however, thousands of elected judges across America know that they could lose their jobs if they make unpopular decisions that anger a majority of voters or inspire special interest attacks. It’s a fundamentally flawed system that is ceding justice to politics.”

The report concludes with recommendations to restore a fair and impartial court system, including:

  • Putting an end to judicial elections in favor of merit-based appointment by committee
  • Promoting greater diversity on court benches
  • Strengthening judicial codes of conduct, including more stringent judicial campaign regulations
  • Increasing anti-bias and cultural competency legal trainings, in addition to public awareness

“The scales of justice are clearly out of balance, but they don’t have to be. The United States should join virtually every other country in the world that says ‘no’ to selecting judges by popular election,” said Lesh. “LGBT people and other minorities need to know that there isn’t a thumb on the scales, that they haven’t been shut out of the process. Reforming the selection and retention of judges is a critical step toward ensuring fair, impartial courts and equal access to justice for all people.”

Read the full findings from the Justice Out of Balance report here and learn more about Lambda Legal’s work to advance a fair, impartial justice system here.


Contact Info

Jordan Brueckner, 646-200-5298,

Related Issues: Fair Courts Project