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48 Judges J. 12 (2009)
A Bench that Looks Like America - Diversity among Appointed State Court Judges

handle is hein.journals/judgej48 and id is 102 raw text is: A Bench That Looks
Like America
By Ciara Torres-Spelliscy

he United States is more diverse
than ever, but its state judges
are not. While we recognize that
citizens are entitled to a jury of their
peers who will be drawn from a pool
that reflects the surrounding community,
Americans who enter the courtroom
often face a predictable presence on the
bench: a white male. This is the case
despite increasing diversity within law
school populations over the past 20 years
and within state bars across the country.
Sotomayor and Judicial Diversity
The Supreme Court nomination and
confirmation of Second Circuit Judge
Sonia Sotomayor has highlighted the
issue of diversity on the bench. Of 110
Supreme Court Justices in the Court's
history since 1789, 106 have been white
men. JusticeSotomayor is just the third
person of color and the third woman on
the Court. Her nomination has provided
the opportunity for a national conversa-
>    tion about judicial diversity.

As national attention focused on the
diversity of the highest federal court, the
homogenous make-up of state courts has
gone largely unnoticed. According to the
latest data available from the American
Judicature Society, 24 state supreme
courts are all white and two are all male.
The homogeneity of these state courts was
produced by both judicial elections and
nominations. No matter how we choose
our state judges, we need to do better at
diversifying the bench.
Brief Overview of the Nomination
In the District of Columbia and 24 states,
judges are appointed using nominating
commissions. In contrast to the nomina-
tion process for the federal bench where
the president has unfettered choice of his
judicial nominees but needs advice and
consent of the Senate, there are five basic
steps in the state judicial appointive pro-
cess: (1) advertising the judicial vacancy;
(2) receiving applications from interested

candidates; (3) vetting and interviewing
prospective candidates; (4) formulating a
short list of recommended names for
the governor; and (5) nomination by the
governor of a person from the list to fill
the judicial vacancy.
Not every state follows this exact nom-
ination formula. Appointive systems in 16
states use the Missouri Plan and require
appointed judges to stand for a retention
election. In a retention election, a judge
does not run against an opponent. Rather,
the only question on the ballot in a reten-
tion election is whether the judge will
keep his or her seat.
The Brennan Center Study of
The Brennan Center for Justice at NYU
Law School studied how successful those
states with appointed judiciaries are at
recruiting and appointing women and racial
minorities. Our goal was to provide an accu-
rate snapshot of state courts and a roadmap
of how to improve judicial diversity.

oJudges' Journal - Vol. 48 No. 3

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