navigating judicial selection new judges speak...

184 JUDICATURE Volume 93, Number 5 March-April 2010

A dvocates and researchers have provided ample evi-dence that there is still work to be done toimprove judicialdiversity.1 In 2005, a reportby The Lawyers’ Commit-tee for Civil Rights underLaw found that “of the 11,344 authorized judgeshipsfor the general jurisdic-tion, appellate, and trial courts within the United States,merely 1,144 or 10.1% [were] held by judges of color.”2

Generally, democracy requires the institutions of govern-ment in a diverse nation be reflective of the public theyserve. However, the particular importance of diversity inthe judiciary cannot be understated given the specificduties of the courts.

It is the business of the courts, after all, to dispense justice fairlyand administer the laws equally. It is the branch of governmentultimately charged with safeguarding constitutional rights, par-ticularly protecting the rights of vulnerable and disadvantagedminorities against encroachment by the majority. How can thepublic have confidence and trust in such an institution if it is seg-regated—if the communities it is supposed to protect areexcluded from its ranks?3

Thus, it is crucial that the public sees a judiciary reflec-tive of the diversity of its community.4 Additionally, diver-sity in the judiciary benefits judicial decision making.5

Judges from different backgrounds and a diversity ofexperiences help to guard against the possibility of nar-

row decisions. Judges candebate with one another,offering divergent perspec-tives and educating theircolleagues about how theirdecisions will affect variouspopulations.6

For some time, researchers have sought to determinewhether a state’s judicial selection process influences

Funding for this project was provided by the Open Society Institute, withadditional assistance from the Lawyers’ Committee for Civil Rights UnderLaw and Justice at Stake. The authors thank Thomas Hilbink, John Brittain,Kenneth Chandler, Bert Brandenburg, and Deanna Dawson for their sup-port and Colleen Sheppard for expert research assistance. In addition, theauthors would like to thank the National Bar Association and the HispanicNational Bar Association for their assistance with this project, as well as thejudges, attorneys, and other individuals who agreed to be interviewed.

1. See Lawyers’ Committee, “Answering the Call for a More Diverse Judi-ciary: A Review of State Judicial Selection Models and Their Impact on Diver-sity,” (2005) at 8; Chris W. Bonneau, The Composition of State Supreme Courts,85 JUDICATURE 26, 28 (2001).

2. Lawyers’ Committee, supra n. 1, at 8.3. See Edward M. Chen, The Judiciary, Diversity, and Justice for All, 91 CALIF.

L. REV. 1109, 1117 (2003).4. See Mark S. Hurwitz & Drew Noble Lanier, Explaining Judicial Diversity:

The Differential Ability of Women and Minorities to Attain Seats on State Supremeand Appellate Courts, 3 ST. POL. AND POL’Y Q. 329, 331 (2003).

5. See Sherrilyn A. Ifill, Racial Diversity on the Bench: Beyond Role Models andPublic Confidence, 57 WASH. & LEE L. REV. 405, 409-10 (2000).

6. See id.

A study of new judges of color foundthat factors other than selection

mechanism usually determine the abilityof diverse candidates to become judges.

by LINDA M. MEROLA and JON B. GOULDROBERTA POLFUS

New judges speak about the processand its impact on judicial diversity

NAVIGATING JUDICIAL SELECTION

www.ajs.org JUDICATURE 185

judicial diversity. Overall, the resultshave been mixed. Early researchconcluded that it was more difficultfor persons of color to become statejudges in appointive systems, arguingthat “appointive systems in general,and merit systems in particular,tend[ed] to favor a prior status quoby perpetuating the dominance oftraditional elites in the judiciary,thus decreasing opportunities forpolitical minorities who may nothave conventional legal backgroundsor experience.”7

Although persons of color have tra-ditionally faced other barriers withinelective systems of judicial selection,it was thought that these systems atleast allowed for the possibility ofchange through competitive elec-tions.8 Those supportive of merit sys-tems have frequently maintained thatthey produce better-qualified judgesand also remove much of the politicsfound in elective systems from theselection process.9 More recentresearch challenges these claims, sug-gesting instead that differing judicialselection mechanisms do not system-atically affect the ability of minoritiesor women to become judges.10 Sev-eral studies have even argued that arelationship between the choice ofselection mechanism and judicialdiversity might once have been pres-ent, but has now disappeared.11

Against this background, we con-ducted a study of state trial court

judges of color to examine the influ-ence of the judicial selection processon diversity. Given the complexity ofselection mechanisms used acrossstates and the progression—andsometimes disagreement—of thefindings from large quantitative stud-ies, we chose to use a qualitative,case-based approach. This allowed usto examine the overall influence ofvarying selection mechanisms ondiversity and to develop a deeperknowledge of each judge’s experi-ence during the selection process.

Generally, we find that the varyingselection mechanisms tend to operateto produce a surprising similarity inthe processes, strategies, and experi-ences of judicial candidates. Ratherthan a specific selection mechanism,the judges overwhelmingly point toother factors—such as politics, net-working, mentorship, and otherresources—as determinative of theability of diverse candidates tobecome judges. Where a choice ofselection mechanism seems to oper-ate to hinder diversity, it is not basedupon this structural choice alone, butrather this choice combined withadditional, more nuanced factors.

Methodology We selected a detailed, case-basedapproach in order to provide a com-prehensive picture of those factorsand conditions that advance or hin-der diversity in the nation’s state trialcourts. We began by casting a widenet, choosing judges of color fromstate trial courts across a range of judi-cial selection systems. The researchfocused on state courts of generaljurisdiction, where the bulk of judicialbusiness is handled in the U.S., andconcentrated on judges initiallyappointed or elected within the lastfive years so that the data would becurrent.

In the end, the research focused on

23 judges across 12 states. Sincejudges of color still constitute a smallminority of state court judges nation-wide, the 23 judges represent a signif-icant percentage of judges of colorselected in the five years precedingthe study. Even more compelling isthe fact that—despite being locatedin states with different selection sys-tems and highly disparate demo-graphics—the judges’ reports of theselection processes were remarkablysimilar. Of those interviewed, 56 per-cent were male. Further, 56 percentwere African Americans, 31 percentwere Latino(a)s, and 13 percent wereAsian/Pacific Islanders. The judgescame from all regions of the UnitedStates and from states with varyingdemographics.

Data on the judges were first assem-bled from secondary sources, includ-ing news stories, bar reports, lawreviews, and other publications. Thecase studies also included interviewswith members of the judiciary, barleaders, journalists, community lead-ers, and other interested observersand activists, as well as academic andother research to supplement thefirst-hand data. Each judge was inter-viewed by the research team, often inperson but also by telephone. Duringthe interviews, the judges were askeddetailed questions about their back-grounds (experience, involvement incommunity and bar activities, lawschool) and decisions to seek a judge-ship. They also were asked to providea detailed description of theprocesses by which they had achievedtheir positions, including their sup-porters, possible opponents, theamount of media coverage surround-ing their campaigns or selection, andwhether or not the processes werecontroversial.

Next, the judges evaluated thefunctioning of the judicial selectionsystems that they had negotiated and

7. Mark S. Hurwitz & Drew Noble Lanier, Diver-sity in State and Federal Appellate Courts: Changeand Continuity, 29 Just. Sys. J. 47, 50 (2008); seealso Lawyers’ Committee, supra n. 1, at 14.

8. See Lawyers’ Committee, supra n. 1, at 14.9. See id. at 10.10. See Hurwitz & Lanier, supra n. 7, at 66;

Nicholas O. Alozie, Selection Methods and theRecruitment of Women to State Courts of Last Resort, 77SOC. SCI. Q. 110 (1996); Mark S. Hurwitz & DrewNoble Lanier, Women and Minorities on State andFederal Appellate Benches 1985 and 1999, 85 JUDICA-TURE 84, 91 (2001).

11. See Hurwitz & Lanier, Women and Minorities,supra n. 10, at 91 .


assessed the impact of their state’sselection system on diversity. Finally,judges were asked to respond to sev-eral questions about the impact oftheir race, ethnicity, and gender onvarious aspects of the selectionprocess, as well as specific questionsrelated to fundraising for elections,interim appointments, and recruit-ment efforts.

Although these questions wereasked of each judge, efforts weremade to focus on the topics that theindividual judge deemed importantand to explore these in more detail.The interviews generally rangedfrom 30 to 90 minutes in length. Atthe conclusion of each interview, thejudges were asked to specify addi-tional individuals who should beinterviewed in order to understandeither the functioning of the judicialselection process in that state or par-ticular aspects of the individualjudge’s experience. As a result ofthese suggestions and also of furthersecondary research, supplementaryinterviews were conducted with avariety of individuals, many of whomare also judges.

The judges who agreed to partici-pate were both extremely supportiveof the project and, many times, wereexceedingly candid. (Indeed, it is thecandor of the judges’ responses thatmakes the findings so unusual andcompelling.) Although many judgesagreed to allow their interviews to be“on the record,” this article will notidentify the participants by name.This is so primarily because the pop-ulation from which these partici-pants were selected is small. If thosejudges who agreed to be interviewedwere identified, appropriate confi-dentiality could not be ensured withrespect to the remainder of thejudges. Where possible, however, rel-evant demographic and other detailsare provided in the discussion thatfollows.

Selection and politicsCivics classes often teach that thejudiciary is to remain insulated frompolitics, but, time and again, thejudges interviewed for this projectstressed the role of politics in judi-

cial selection. This was the caseregardless of the selection systemthat the judge had navigated. By pol-itics, the judges meant the full spec-trum of political influences, frompartisan political activities to formaland informal campaigning, as wellas the strategies necessary to navi-gate processes fraught with organi-zational and interpersonal politics.Interestingly, the judges were bothexplicit in their references—such asin response to questions about thepolitical aspects of the process—andalso expressed these influencesimplicitly by the factors that theychose to emphasize in answeringbroader questions about their expe-riences. In fact, political and strate-gic considerations were seeminglydiscussed at greater length than anyother theme. Further, these discus-sions were also surprisingly candid.

This is not to suggest that thejudges failed to highlight otheraspects of the process or other typesof preparation for their positions.Across the board, judges viewedadditional factors—such as thedevelopment of a judicial tempera-ment and substantive preparation—as important. However, when askedspecifically about the factors in theirbackground or experience that theythought most influenced their abil-ity to attain their positions, nearly allmentioned both political and strate-gic considerations. Political consid-erations featured prominently inalmost all interviews regardless ofthe selection system that each judgehad navigated. Though it is not sur-prising that politics might be a fac-tor in success (particularly inelective systems), the frequency andconsistency with which these judgesspoke of politics was surprising.

Even the judges from appointivesystems routinely mentioned politicalconsiderations. This was particularlyunexpected, as appointive systemsare generally thought to help insu-late the judicial selection processfrom politics.12 In fact, previousresearch has not only suggested thatthe appointive and elective selectionprocesses themselves differ greatly inwhat they require of candidates, but

even that these systems are so dissim-ilar that they produce significantlydifferent outcomes in terms of thetypes of judges selected, their sub-stantive decisions, and even theamount of litigation in a state.13 Fur-ther, this research has gone so far asto link differing selection proceduresto disparities in judicial salaries andalso to varying patterns of interactionamong the branches of state govern-ment.14 Yet, in the case of the judgeswho were interviewed for this project,their assessments of these selectionprocesses were remarkably similaracross the different types of systems.Time and again, the judges’ spoke ofsimilar political considerations,strategies, preparation, and skills nec-essary to successfully navigate theseprocesses.

Although all of the judges empha-sized these factors during their inter-views, judges from partisan electivesystems were often unabashedly polit-ical. By this, we mean that they werequite candid about the fact that selec-tion is a political process and fre-quently described the political factorsthat aided their candidacy in greatdetail. For example, one judge from apartisan elective system openly admit-ted that he was not the “most experi-enced” at the time of his initialinterim appointment and that he“leapfrogged ahead of someone withmore experience” due to his politicalexperience and relationships.15

The judges from partisan electivesystems also discussed at length how

12. See F. Andrew Hanssen, On the Politics of Judi-cial Selection: Lawyers and State Campaigns for theMerit Plan, 110 PUB. CHOICE 79, 80-84 (2002);Kathleen A. Bratton & Rorie L. Spill, ExistingDiversity and Judicial Selection: The Role of theAppointment Method in Establishing Gender Diversityin State Supreme Courts, 83 SOC. SCI. Q. (2002);Hurwitz & Lanier, Women and Minorities, supra n.10, at 84.

13. See, e.g., F. Andrew Hanssen, The Effect ofJudicial Institutions on Uncertainty and the Rate ofLitigition, 28 J. OF LEGAL STUD. 205 (1999);Melinda G. Hall and Paul R. Brace, Justices’Response to Case Facts, 24 AM. POL. Q. 237 (1996).

14. See, e.g., G. M Anderson, W. F. Shughart,and R. D. Tollison, On the Incentives of Judges toEnforce Legislative Wealth Transfers, 32 J.L. & ECON.,215 (1989); W. M. Crain and R. D. Tollison, Con-stitutional Change in an Interest-Group Perspective, 8 J.OF LEGAL STUD. 165 (1979).

15. Interviews with judges were conductedbetween September of 2008 and January of 2009.The judges’ names and identifying informationmust remain anonymous.


they framed their appeal to the votersand routinely spoke of the impor-tance of prior party registration, workon campaigns, hosting fundraisers,and political networking. In addition,money was described as cruciallyimportant in elective states. Many ofthe judges emphasized that candi-dates of color are frequently disadvan-taged by their inability to raise largeamounts of campaign funds.

In particular, the elective judgesfelt it was difficult for minority candi-dates to raise money compared withtheir white counterparts who hadgreater business and other networks.In fact, one judge who had first been

appointed to his position (in an elec-tive system) candidly stated that he“could not have afforded to run” ini-tially. Instead, this judge had rou-tinely volunteered in community,church, and bar activities in order “toget his face and name known,” a factthat ultimately led to his appoint-ment. Another judge said that ithelped to have practiced law as amember of a large firm because hecould tap into those connections inorder to increase his fundraisingpotential. In fact, elected judgesrepeatedly cited campaign money, or,rather, the difficulty of raising it, as aleading issue that discourages minor-ity candidates for judgeships.

In states where the judges facednon-partisan elections, the respon-dents frequently emphasized similarfactors. For example, despite the factthat these judges do not technicallyaffiliate themselves with a politicalparty, they frequently felt that theirknown party sympathies were influ-ential in their success. In fact, as

reported in some previous studies ofthe topic,16 a good number of themfelt that the non-partisan electionsdid little to quell the political aspectsof the process. For example, onejudge stated that “everyone knewwhat party I was and so I had theDemocratic support.” He expressedfrustration at the fact that he could-n’t campaign openly as a party mem-ber, since he felt that it would havemade fundraising easier. Anotherjudge mentioned that—althoughjudicial elections in his state are non-partisan—influential partisans con-tribute to and endorse judicialcandidates, thereby making the elec-

tion partisan.In this way, many of the observa-

tions about political campaigns fromother research seemed to apply toelective judicial campaigns. Forexample, many of the judges whoparticipated in elections producedcommercials, websites, and/oronline advertisements to aid theircampaigns. A few of the judges men-tioned that they hired someone toconduct opposition research in apartisan election or used other typesof political consultants.

Surprisingly, the judges in non-elective states also frequently focusedon the political factors surroundingtheir appointment. As an example,with little or no prompting, judges inelective systems described how theypromoted their candidacies andbackgrounds to voters in much thesame manner as typical candidatesfor any (non-judicial) elective officewould. Appointed judges, by com-parison, used similar language todescribe how they made their case tothe nominating commission and toinfluential members of the commu-nity. Judges in appointive systems

underscored the fact that they stillmust think carefully about how theyportray themselves and their candi-dacies.

Further, regardless of the selec-tion system in their states, judgesreported that they carefullythought about and managed theirpublic persona. Even appointedjudges discussed how they con-sciously highlighted aspects of theirexperience—such as involvementwith charities or being a longstand-ing member of the community—with the explicit goal of portrayingthemselves as attractive to the pub-lic, elites, commission members,and elected officials. One judge inan appointive system underscoredthe similarities of politics acrossselection systems, even saying thatan appointed judgeship “is still apolitical office, so you will alwayshave examples where politicstrumps [legal] experience.” In fact,the judicial interviews yielded sev-eral similar statements, which camefrom judges in both elective andnon-elective states.

Moreover, prior partisan politicalactivity was universally regarded ashelpful in attaining a judgeshipacross selection systems. The benefitsmentioned ranged from help withraising money (in elective states) toraising the judge’s profile (in allstates). Nearly universally, the judgesviewed prior political activity as cru-cial in demonstrating leadershipskills and developing references whowould write letters of support tonominating commissions or endorsethe judges’ candidacies during elec-tions. To a certain extent, these find-ings are surprising, as they challengeassumptions about the degree towhich varying selection systems pro-duce different political processes.Though limited to recent judicialcandidates of color, our findings sug-gest that traditional conceptions ofthe significant differences betweenthe experiences of judicial candi-dates in these systems may need tobe at least partially reconsidered.

Where we noticed variationsbetween the interviews withappointed and elected judges, it was16. See Lawyers’ Committee, supra n. 1, at 13.

Prior partisan political activity wasuniversally regarded as helpful inattaining a judgeship across selectionsystems.


that appointed judges sometimesseemed less willing to label theirbehavior as explicitly political. In afew instances, some appointedjudges even maintained that theywere not particularly politicallysavvy. Despite this, even these judgesdiscussed political considerationsand the political climate nearly asfrequently as their counterpartsfrom elective systems. While theydid not discuss political partiesquite as frequently, these judges didsometimes mention partisan consid-erations, such as their party affilia-tions, the electoral strength of thepolitical parties in their states, oreven the manner in which thesejudges’ selection strategies fit withinthe larger partisan climate.

Perhaps judges from appointivesystems are more cautious in admit-ting to political expertise. That is, itmay be less acceptable to acknowl-edge the requirements of politics asopenly in an appointive system, andin fact, appointed judges tended touse other terms to describe theirpolitical activities. Nevertheless, thejudges’ comments routinelyreflected the same concern with“strategy,” “planning,” “getting toknow people,” “networking” andeven “participating” in politics thatthe most seasoned political opera-tive would recommend. Further,these activities were on a largerscale and were more deliberate—closer to a true “campaign”—thanthe networking that takes place inmany professions. In short, electedjudges detailed a formalized andintentional process of networkingand campaigning. Appointedjudges frequently described anunofficial process of networkingand campaigning, but the processwas no less purposeful and it wasoften no smaller in scope or plan-ning.

Despite this, the distinctionbetween involvement in official andunofficial political processes maynot be insignificant, particularlywhen considering the impact thatinvolvement in each may have uponthe manner in which a judge viewshis or her future role and connec-

tion with partisan politics. However,our findings do seem to suggest thatrecently selected judicial candidatesof color may have experienced simi-lar processes, made similar calcula-tions and utilized similar skill setsacross selection systems. Thesejudges described the influence ofpolitics on judicial selection in suchsimilar terms that the stark distinc-tion contemplated by some previousresearch may require a morenuanced evaluation.

Importance of elected officials That so many of the judges describedthe selection process in political termsis unusual, since much of the publicremains largely unaware of those whoserve on the state courts. To the extentthat these processes are political, then,they depend on the involvement andsupport of political “elites”—electedofficials, bar leaders, and in somecases sitting judges. Indeed, time andagain, the judges reiterated in theinterviews that a diverse judiciarydepends on the active support of polit-ical leaders regardless of the selectionmechanism in place in the state. Inter-viewees most often cited the role ofgovernors in pushing an agenda ofdiversification, both in states wherethe governor possesses the power tomake judicial appointments and inother states.17 Many of the judgesspecifically mentioned the power tomake interim appointments as crucial.One judge described an interimappointment as “a back door thatallows candidates to show their meritswithout a politically charged election.”

Some judges said that the activesupport of a chief justice, group oflegislators, or local party leaders canmake a difference in diversifyingstate courts. Bar associations andmembers of the public may alsoincrease pressure on elected officialsand prioritize the issue of diversity.Since members of the public rarelyknow a great deal about those whoserve on the state judiciary, thejudges felt that increased efforts atvoter and public education wouldreinforce the efforts of elected offi-cials supportive of diversity.

In places where a supportive gov-

ernor is in office, many of the judgesexpressed a positive outlook aboutthe future of diversity and the gen-eral climate within the state. Severaleven credited particular governorswith inspiring changes in beliefsabout the importance of diversity.One judge reported that the effortsof the governor and others had ledto a “real cultural shift” in that thereis now “strong support within [her]state for increasing the diversity ofthe bench.” Frequently, judges instates with supportive elected offi-cials felt as if their race, ethnicity, orgender had been an asset in helpingthem to secure their positions. Onejudge stated that he had been in the“right place at the right time for thegovernor’s desire to promote diver-sity on the bench.” These judgesexpressed a good deal of pride intheir states and were quite hopefulabout the future of diversity.

Assessing selection mechanismsOverwhelmingly, the judges extolledthe selection system that each hadsuccessfully navigated. Judges whohad been elected expressed supportfor elective systems. They liked theability to “make their case” to the vot-ers and expressed concern thatappointive systems would translateinto decreased diversity on thebench. They feared that commis-sions would wield too much powerand that prejudice would block theselection of diverse candidates. Inaddition, these judges worried thatthe appointment would be morestrongly related to “who you know”than to individual qualifications.

Those judges selected within anappointive system consistently heldthe opposite view. They praised theappointive model as merit-based andfairer. In their view, elective systemsraise problems for candidates ofcolor, since they can allow voterstereotypes and racism to play a rolein selections. Appointed judges wor-ried that elections would tilt the play-ing field against minority candidatesbecause other candidates could raise

17. See also Brennan Center for Justice, Improv-ing Judicial Diversity 30 (2009).


funds more easily. In addition, theyfeared that elected judges would betoo tied to politics and that connec-tions would trump qualifications. Avery small number of judges sug-gested minor changes to their cur-rent systems, such as longer termsfor appointed judges or the abolitionof primaries in elective states. Yet,even so, the judges overwhelminglysupported their state’s current selec-tion system and favored the currentselection mechanism as beneficial todiversity.

In addition to general questionsabout the selection processes in theirstates, the judges were asked detailedquestions about how the selectionprocess operated in their particularcases. For example, each judge wasencouraged to speak about his orher supporters, opposition, and theextent of media coverage. Judgesseemed uncharacteristically hesitantto discuss their opposition. Forexample, when they did answer ques-tions about their opposition, theytended to name specific opponentsand would not discuss any organizedforces that opposed them. Fre-quently, the judges even assertedthat no one (other than a namedopponent in an elective state) hadactively objected to their selection.The fact that the judges were hesi-tant to discuss these topics may sug-gest a concern with politics, in thatanswers could have resulted in polit-ically charged assessments of localpolitics.

Media coverageOn the whole, the judges reportedminimal media coverage of theirselection regardless of the mecha-nism, a finding also confirmed by thesecondary research conducted foreach case study. Many of the judgesfrom the non-elective states said theyexperienced no media coverage atall. Judges in partisan elective statesreceived the highest amount of cov-erage in our study, with endorse-ments from newspapers and othercoverage of the election. However,even in these instances, media cover-age was generally quite sparse. Thesmall number of exceptions seemed

to occur in the coverage of highlycontested races or ones in which ascandal erupted.

In most cases, the few stories thatwere written about the judges largelydetailed their qualifications in a cur-sory manner, much like a short biog-raphy. Media coverage alsosometimes highlighted the judges’minority status, particularly if a judgewas the first member of a racial orethnic group to attain the position,despite the fact that the judges fre-quently pointed out that they did notrun on their minority status alone.

Many of the judges expressed grat-itude that comparatively little mediacoverage was devoted to their selec-tion. Some spoke of fighting the per-ception that they would not be toughon crime or would make excessiveallowances for members of their ownminority group. One judge acknowl-edged that there is a certain amountof pressure attendant to being thefirst member of a minority group tobe selected. As a result, he preferredto “fly below the radar.” By this hemeant that he just wished to do hisjob to the best of his ability withoutthe fanfare of media coverage and todemonstrate the benefits of appoint-ing a diverse judiciary through hisactions. The few notable exceptionsto this were judges in partisan elec-tive states, some of whom hoped togarner additional media coverage inorder to aid their election bids.Indeed, several of these candidateshad actively supplemented the cover-age devoted to their campaigns byproducing web commercials andcampaign websites.

Planning, networking, strategyDuring the interviews, the judgeswere also asked to describe in detailthe actions that they had taken toprepare for the selection process sothat these preparations could becompared across selection systems.Almost universally, they described aprolonged process and highlightedthe great amount of preparationnecessary to be successful. Many ofthe judges were not successful ontheir first try.

Regardless of the selection system

in place, the judges frequently felt thattheir selection hinged on advancedplanning. One reported that he hadbeen focused on becoming a judge for17 years before he had attained hisposition. He said that he “kept thejudgeship in mind during his entireprofessional career as a prosecutor.”According to the judges, if a candidatepossesses clearly defined goals or con-victions about the way in which shewill ultimately handle the job, she canmake a strong case to a nominatingcommission or to the public in anelection.

A majority of judges pursued anactive strategy of networking,endorsements/references, and“retail politicking.” Even in stateswithout elections, these intervieweessaid that judges must engage in agood amount of networking in orderto be successful. Many of the judgesbecame involved in and utilizedsocial, professional, religious, andservice-oriented networks to do soand to let others know that theywished to become a judge. While thenetworking process is discussed ingreater detail below, it is an impor-tant point to emphasize here, as well.As an example, one judge men-tioned that she planned her cam-paign by speaking with a lot of localattorneys “about which district to runin” and, in this way, “[she identified]an incumbent judge who many ofthose lawyers wanted ousted.”

All candidates must network anddevelop a public persona, oftenthrough community service and baractivities. However, in an electivesystem, each judge must also planher official campaign, and several,in fact, served as their own de factocampaign managers. One judgementioned that she initially gath-ered five “well-connected” femalefriends who were also attorneys tohelp organize her campaign. Thisjudge reported that she got a bigboost once another well-connectedlocal woman agreed to serve as acampaign official for her. Forfundraising, this judge drew on peo-ple she knew from past service onlocal boards and commissions andthose—such as women’s groups—


that supported the election of afemale judge.

Another judge said that he bene-fited from prior fundraising that hehad performed for other candidates.When this judge was ready to runhimself, he was able to call on thosecandidates and their supporters tohelp raise money for his campaign. Itis clear from the comments of thejudges that they utilized their exist-ing social, professional, and service-oriented connections to providesupport for their campaigns.

Even more importantly, judgesneeded to have these connections inplace well before they considered ajudgeship. One judge described thisprocess as “creating networks” inadvance of a planned candidacy.While judges from appointive systemsdo not have to run a formal cam-paign of the type described above,the appointive judges emphasizedthe same networking process as cru-cial for any judicial candidate.

Indeed, as a follow-up to this lineof questioning, the judges wereasked how confident they were ofbecoming a judge when they initiallysought a judgeship. Most answeredthat they were fairly certain of suc-cess. In many cases, the judges saidthat they had possessed this confi-dence both early in their careers andalso during the process. Even thoughmany anticipated that the processwould be a long one or even found itnecessary to navigate the selectionprocess more than once, they feltconfident that they would eventuallybe able to attain the goal.

However, judges from partisanelective states and those who werealso the first of their race and/orgender to make it to the bench intheir local area fundamentally ques-tioned their ability to win election.Indeed, these judges recalled theirdoubts even while expressing confi-dence in their preparation, qualifica-tions, and abilities. Frequently,judges described these geographicalareas as “traditional,” “conservative,”or lacking in population diversity,and called them inhospitable tominority candidates.

In stark contrast, judges from

appointive systems—even if they werethe first of their race or gender to beselected for their position—did nothighlight the demographics of theirregion in this manner and expressedearly confidence in their ability toattain their positions. This findingseems to contradict the longstandingargument that appointive systemsprotect the status quo and maintainelite control over judicial selection.18

As discussed above, early researchseemed to confirm this idea and pro-vided evidence that the number ofjudges of color in appointive systemsdiffered from those in elective sys-tems.19 More recent research has sug-gested that this difference seems tohave disappeared over time as com-missions and others charged withmaking appointments have becomemore supportive of diversity.20

The judges interviewed for thisproject confirmed that change.Indeed, many of the judges fromappointive systems said that diversityhad become a priority in their statesand that, as a result, they faced amore hospitable climate for consid-eration and selection. In this way, thekey difference found among judgesin this study is not between judgesfrom elective states and those fromappointive systems. Rather, it isbetween partisan elective systemswhere few or no judges of color have beenelected previously and other kinds ofsystems (appointive systems, electivesystems, and even appointive systemswhere few judges of color have beenselected). Where judges were amongthe first minority candidates to runfor partisan election, they said thatthey had doubts about their ability towin. By contrast, virtually all otherjudges interviewed were confident oftheir eventual appointment or elec-tion. Considering that this researchwas directed to successful judicialcandidates, the problem may beeven more profound for judicial can-didates as a whole.

Experience and service It is not surprising that previous pro-fessional experience was universallyregarded as important. In the inter-views, judges underscored their pro-

fessional experience, both in describ-ing their substantive preparedness forthe job and also as proof that they haddeveloped the qualities necessary tobe a good judge. Once again, this wasthe case regardless of the selectionmechanism used by their states.

Former prosecutors emphasizedprosecutorial experience as particu-larly useful. Although this was thecase across selection systems, judgesserving in elective states tended tospend more time discussing thisexperience. This might reflect thegreater ease with which the publicunderstands the role of the prosecu-tor and how it might enhance ajudge’s qualifications. In both typesof selection systems, judges withalternative experiences were moreexplicit in their explanation of theways in which their backgroundhelped prepare them to be a judge.Often, the judges with other types ofexperience said that they had towork harder to prove that they werequalified.

This is not to say, of course, thatother types of professional experi-ence are unhelpful to candidateswhen they apply to become a judgeor campaign for a judicial post. Infact, many of the judges felt thatthese alternative professional experi-ences had, in the end, made theirapplications stronger than they oth-erwise would have been, as thejudges could “sell” their candidacy asbringing unique perspectives orqualifications that were lacking onthe existing bench (in addition tothe requisite courtroom and trialexperience, of course). However, thejudges who had not been prosecu-tors stressed that their other experi-ences would be helpful, and thatcandidates with these experienceswould be successful, only if they pos-sessed a clear vision of the benefitsthat their selection would bring tothe bench and a clear strategy forpositioning themselves. This was the

18. See Hurwitz & Lanier, supra n. 7, at 50;Lawyers’ Committee, supra n. 1, at 14.

19. See Hurwitz & Lanier, Women and Minorities,supra n. 10, at 91.

20. See Hurwitz & Lanier, supra n. 7, at 66;Alozie, supra n. 10, at 110-126; Hurwitz &Lanier,Women and Minorities, supra n. 10, at 91 .


case regardless of the selectionmechanism operating in the state.

The judges also mentioned priorjudicial service as useful—for exam-ple, when candidates had previouslyserved as a magistrate or in a court oflimited jurisdiction. Not surprisingly,interviewees said that this experi-ence helped to position them for amore prestigious judicial post. Inter-estingly, their comments appear con-sistent with some prior researchshowing that women and minoritiesare first diverted to municipal judge-ships over courts of general jurisdic-tion.21 However, more recentresearch provides evidence that—

while the judiciary still needs tobecome much more diverse—thetendency to appoint women andminorities to less prestigious courtshas reversed itself somewhat.22

Not surprisingly, many of thejudges also highlighted involvementin bar activities as invaluable indemonstrating their commitment toservice and capacity for leadership.Participation in bar activities was spo-ken of almost as a partial litmus testfor judicial service. Bar participationallowed judicial candidates to net-work with other attorneys, whichoften resulted in recruitment andmentorship. One judge felt that hisbar association was particularly help-ful because it “exposed him to a widespectrum of the legal community.”In commission states, it also can beimportant to have bar memberswrite letters on behalf of the candi-date. In fact, one judge revealed that

the better letters come from influen-tial members of the community whoappear to be writing unprompted, sothe judge “told lots of people in her[law] office that she wanted to be ajudge,” mentioned it to “older,skilled judges before whom sheappeared” and also discussed hergoal with “other lawyers in the com-munity, including a group of womenlawyers.”

Most of the judges similarlypraised the usefulness of specialtybar associations, especially women’sbar associations and those related toparticular racial or ethnic communi-ties. These bar associations provided

the same type of networking andleadership benefits as the wider barassociations, but they were addition-ally viewed as necessary constituen-cies for candidates with a sharedrace, gender, or ethnicity. In fact,one judge attributed his election tohis “ability to bring together his con-stituencies,” beginning with those inthe African-American bar associa-tion. Some of the judges mentionedas cautionary tales unsuccessful judi-cial candidacies and the problemsinherent in failing to mobilize thesebar associations and/or the mem-bers of the relevant communities.Several judges also mentioned that itis helpful for a judicial candidate tobecome involved in and to appeal toother ethnic and racial communitiesin addition to their own. Theirimplicit message was that candidatesof color had to reach out to otherminorities to generate additionalsupport.

Volunteer activities within theracial and ethnic community and barassociations can become exceedinglyimportant in “majority-minority”areas.23 In some cases, judicial slotshave come to be viewed as “belong-

ing” to members of a particulargroup, according to those judges whohad experienced this. One judgereported that he was discouragedfrom running for a particular positionbecause his country-specific back-ground was not the same as the back-ground of those for which theposition was informally reserved. Thiswas the case even though both ethnic-ities belonged to the same largerracial group.

Regardless of location, the judgesfrequently and explicitly equatedcommunity service with the demon-stration of necessary leadership skills,although many also mentioned thatsuch service provides opportunitiesfor networking and building a coali-tion of community support. Onejudge recommended that “everyoneshould give of himself to the commu-nity” because when a judgeshipcomes along, the individual is viewednot as “a carpet bagger but [as] anestablished member of the commu-nity who is wanted and encouragedfor the position.” A judge whoachieved his position by gubernato-rial appointment mentioned that thegovernor had even “polled commu-nity groups about him before theappointment.” While it was veryimportant in all systems, judges inelective systems described communityservice as crucial to their success. Fur-ther, some elective judges particularlyhighlighted their affiliation with reli-gious organizations. One judge men-tioned that religious involvement hadaided him because he “was known ata number of churches” where he hadpreviously spoken, and “had acted astheir attorney and represented themas well.” However, the judges whohighlighted religious activities werelocated in elective states, not commis-sion states.

Need for mentors The judges made clear that they didnot secure their positions on theirown, and many pointed to mentorswho performed a great variety offunctions and helped them in severalways. Frequently, these mentors wereother judges, political leaders, orwell-connected members of the

21. See Barbara L. Graham, Judicial Recruitmentand Racial Diversity on State Courts: An Overview, 74JUDICATURE 28, 30 (1990).

22. See Barbara L. Graham, Toward an Under-standing of Judicial Diversity in American Courts, 10MICH. J. RACE & L. 153, 172 (2004).

23. That is, communities in which racial or eth-nic minorities form a majority of the population.

Judges praised the usefulness of specialtybar associations, especially those related toparticular racial or ethnic communities


racial or ethnic community fromwhich the judge hailed or from thelarger community. Mentors are, ofcourse, important for all judicial can-didates. However, in the case ofminority candidates—especiallythose who were the first from theircommunities to seek a judgeship –these advisors were described asinstrumental in explaining the work-ings of the selection process, helpingpotential candidates to network,assessing the timing for their candi-dacies, and developing a successfulstrategy for selection. In fact, thesementors often played a significantrole in encouraging and recruitingjudicial candidates.

These contacts were equallyimportant in both appointive andelective systems. Mentors helped toprovide formal endorsements inelective states and informalendorsements and support in otherstates. Additionally, in commissionstates, mentors were particularlyhelpful to judicial applicantsbecause they could write letters ofsupport to the commission mem-bers. Since the commissions areoften comprised significantly ofmembers of the bar, whose mem-bers in turn rate their peers for thebench, it is not surprising thatdeveloping a visible professionalrelationship with an experiencedlawyer or judge would benefit appli-cants for the bench. In comparison,in elective states, the judges saidthat mentors aided greatly withfundraising (particularly politicalcontacts and contacts with big lawfirms). While the intervieweesspoke of the significance of manydifferent types of contacts (asdetailed previously), they consis-tently underscored the importanceof identifying one or a small num-ber of specific individuals to act asmentors.

Some of the judges reported thatthey actively sought out their men-tors long before taking their firstaction to apply for or run to becomea judge. When asked about advice tofuture candidates, the judges repeat-edly advised prospective candidatesto find mentors, because it was

imperative to “let people know thatyou want to be a judge.” Coupledwith the early research that each can-didate compiled before consideringa judgeship, their efforts to associatethemselves with mentors suggest thatthere may be a pool of ambitious,prepared minority candidates whocould be identified for recruitment.

Support for diversityAt the close of each interview, thejudges were asked to assess the sup-port for judicial diversity in theirstates and communities. They werequeried about stereotypes, racism,and the degree of controversyattached to their selection. On thewhole, only a few judges reportedtheir selection as controversial, withthe controversies unrelated to thejudges’ race, ethnicity, or gender.For example, one judge said that hiselection had been controversial, butthen explained that the controversywas generated by media coverage ofa possible attempt by another candi-date to influence the election withmoney. Nonetheless, media coverageof the election increased. It is impor-tant to note that all of the judgeswho said that the process was contro-versial were located in partisan elec-tive states.

Although all of the judges agreedthat more work must be done todiversify the courts, many alsoreported that the climate in theirstates is generally encouraging ofdiversity. The majority of intervie-wees felt that their race, ethnicity, orgender had been an asset in helpingthem to secure their positions. Thefew interviews that provided excep-tions to this theme were, again, thosejudges who represented the first oftheir ethnicity, race, or gender to beselected for that position and whowere also located in partisan electivestates. This was not the case for pio-neering judges in other types of sys-tems.

Similarly, when asked if they feltthat they were held to an unfair stan-dard or subjected to discriminationduring the process, judges from non-elective systems said that they didnot. The same was true for judges

from elective systems located withinmajor metropolitan areas. However,elected judges from less urbanlocales were much more likely toreport that discrimination had beenpresent during their selection expe-rience. All of the elected judges fromless urban locales were also the firstof their race, ethnicity, or gender tobe elected as a judge.

Despite the fact that most judgesreported a climate supportive ofdiversity, a number of respondentsexpressed concern about a differentkind of prejudice—that related tothe ratings systems used to evaluatejudges on the bench. Rather thanrepresenting true effectiveness, sev-eral judges thought that these meas-ures reflected a jurist’s personalpopularity or his or her ability to net-work within the bar. One judgeasserted that the ratings were “drawnfrom such a small percentage of thebar, that it was basically a farce. It waseye opening because it was a popu-larity contest.” As such, some judgeswere concerned that these systemsprovide avenues for lawyers toexpress implicit biases against femalejudges and judges of color. Judgeswho are rated unfairly may lose theirseats in the next round of electionsor in a retention election. There hasbeen some evidence of these prob-lems in past research,24 but addi-tional studies are needed to assessthe scope of the problem and tomake recommendations.

ConclusionTo reinforce democratic values andstrengthen the public’s confidence inthe justice system, it is crucial that thejudiciary reflect the diversity of thecitizenry and that judges have thebackground to appreciate the circum-stances of those who appear beforethem. Action has been taken over theyears to diversify the state courts, butadditional efforts are needed so thatmore judges of color can reach thestate bench. The present researchoffers a snapshot of the recent experi-

24. See, e.g., Christine M. Durham, Gender andProfessional Identity: Unexplored Issues in Judicial Per-formance Evaluation, 39 JUDGES J. 11 (2000).

www.ajs.org JUDICATURE 1 93

ences of successful minority judgesand also provides an assessment ofhow these experiences differed acrossvarying selection systems. These find-ings coalesce around several centralpoints, including the political andstrategic nature of the selectionprocess, the importance of the candi-date’s experience, networking, andplanning, and the need for recruit-ment and mentoring.

According to the judges, most ofthese issues operate similarly acrossthe states regardless of the system ofjudicial selection, although, ofcourse, the facts of each appoint-ment are unique. Indeed, ratherthan focusing on selection mecha-

nisms, this research suggests thatother factors, such as support fordiversity in the state’s leadership,may influence the overall diversityfound in the state’s trial courts. Inthe small number of cases where thechoice of a partisan elective processseemed to hinder diversity, thiseffect appears to occur in combina-tion with other specific characteris-tics, such as the location of ajudgeship and the lack of any his-tory of judicial diversity. Apart fromthese findings, the study may targetand inform future research by high-lighting specific hypotheses basedon the experiences of the judgesinterviewed for this project, rather

than attempting to examine selec-tion systems generally. g

LINDA M. MEROLA is assistant professor of Administrationof Justice and a faculty member in theCenter for Justice, Law and Society atGeorge Mason University.([email protected])

JON B. GOULD is associate professor of Administrationof Justice and director of the Centerfor Justice, Law and Society at GeorgeMason University. ([email protected])

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admission to an educational institution or the bar, appointment to the bench, and adjudicativeproceedings. The 2009 update incorporates recent advisory opinions and citations to the 2007 ABA

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