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84 Tenn. L. Rev. 247 (2016-2017)
The New Diversity Crisis in the Federal Judiciary

handle is hein.journals/tenn84 and id is 253 raw text is: 





              THE   NEW DIVERSITY CRISIS
              IN THE FEDERAL JUDICIARY

              JASON  IULIANo* AND  AVERY STEWARTt

    For much of its history, the federal judiciary was characterized by
a complete lack of surface-level (i.e., demographic) diversity. Over the
past fifty years, efforts to promote surface-level diversity have yielded
significant gains and the modern judiciary now looks more like the
citizenry it serves than it has at any other point in history. Although
this particular diversity crisis has abated, a new one  has taken
shape.
    Today, deep-level diversity is at an all-time low. This type of
diversity denotes those  attributes that are  non-demographic   in
nature. It includes characteristics such as work experience, values,
attitudes, and  educational  background.   Given  the  salience of
educational background  in recent Supreme  Court  nominations, we
focus on this dimension. Based on more  than two hundred  years of
data  on the legal education of judges, our  analysis reveals that
graduates  of a smaller  and  smaller number   of law schools are
capturing a larger and larger share of federal judgeships. This trend
is emblematic  of a  broader  decline in the judiciary's deep-level
diversity and speaks to the emergence of a new diversity crisis.

INTRODUCTION.        ........................................... 248
I.     REDEFINING  DIVERSITY IN THE LAW...............    ..... 251
       A.  Surface-Level      .................................. 252
       B.  Deep-Level       ............................. ..... 262
II.    MEASURING   SURFACE-LEVEL  DIVERSITY ......      .......... 269
III.   MEASURING   DEEP-LEVEL  DIVERSITY..............   ..... 274
       A.  Educational Background  of Federal Judges.................. 275
           1. Aggregate Data      ................................ 278
           2. Time-Series Data............................ 283
           3. Representation Ratio...       .................... 288
       B.  Educational Background  of Law Clerks .......      ..... 292
           1. Supreme  Court................................. 295


     * Jason luliano is an Associate Research Scholar at Yale Law School and a
Ph.D. candidate in Politics, Princeton University. He received his J.D. from Harvard
Law School.
     t Avery Stewart is a Global Business Services Consultant at IBM; She
received her B.A. from Princeton University. We thank Dan Kahan, Madison
Kilbride, Tim O'Neill, and Philip Pettit for valuable discussions relating to this
project.

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