There is no question that the legal profession is really really bad at diversity. Women are criminally underrepresented in BigLaw. We are one of the least racially diverse professions in the country. We just aren’t doing a good job at ensuring that the profession reflects the population as a whole. That’s why it is entirely unsurprising to find out that state court judges are woefully non-diverse as well.
A new study from the American Constitution Society shows exactly how stark this is at a nationwide level.
Now, this does vary widely state to state. Utah, which ranks dead last for its diversity relative to its population, is abysmal.
Hawaii, on the other hand, does quite a decent job at ensuring diversity of the bench reflective of its population.
Between Hawaii and Utah, it’s a pretty dismal pack, with a large number of states coming in with an “F” grade, even when they are slightly less awful than their peers with even lower “F” scores.
If you look at these numbers in terms of who goes into the profession in the first place, you’ll see we have two different problems. For women, the issue isn’t whether they enter the profession or not. In other words, it’s not a pipeline problem. Indeed, they’ve been entering the profession in rough parity for quite a while, but far more women than men leave the profession or fail to thrive in the profession in a way that leads to judgeships.
According to the American Bar Association, 36% of licensed lawyers in 2016 were female, an increase of 6% since 2000. Law school students are at a near parity in terms of sex (52% male, 47% female in 2013-2014) and have been for some time, but more women leave the profession.
Some mothers who are practicing attorneys say they face an unforgiving environment in top law firms — the very places where judges-in-waiting are groomed — requiring them to prioritize work over family in order to advance. Research also shows that women in corporate America leave in high numbers because they are placed in unfulfilling roles and believe their prospects for promotion are dim.
For people of color, it is a different story, and it is a pipeline problem. People of color are still underrepresented in law school enrollment and their numbers are increasing incredibly slowly.
[From 2000 to 2010] minority enrollment in the J.D. programs of ABA-approved law schools increased by 6,752 students, or 1.8 percent (from 20.6 percent in 2000-2001 to 22.4 percent in 2009-2010).
When you don’t have enough people of color entering the profession, you don’t have enough people of color making it into the kind of high-profile jobs where it becomes likely that they would be tapped for judgeships.
The “Gavel Gap,” as ACS calls it, is real, pervasive and problematic. With 90% of all cases being tried in state courts, a judiciary that in no way represents the people that come before it is unfair and untenable.