Kansas stands out for lack of diversity in its judicial branch
Topeka ? Women and minorities make up only a small fraction of all the judges on state courts in the United States, but Kansas stands out as having one of the whitest and most male-dominated state court systems in the country.
That’s according to a recent study titled “The Gavel Gap” by the nonpartisan American Constitution Society, which looked at the race, gender and ethnicity of state judges nationwide, including both trial and appellate courts.
“We find that state courts do not look like the communities they serve, which has ramifications for the functioning of our judicial system and the rule of law,” the report concluded. “Our findings are particularly important given the vital role state courts play in our democracy, in our economy, and in our daily lives.”
The study employed researchers from Vanderbilt University and the University of Toronto to sift through biographical information, including photographs, of more than 10,000 state court judges nationwide and compared the makeup of state courts with Census Bureau data about each state’s general population.
Nationwide, the report noted, women make up 51 percent of the population but only 30 percent of state court judges, a gap of 21 percentage points. People of color, meanwhile, make up 38 percent of the population, but they account for only about 20 percent of state judges, a gap of 18 percentage points.
Looked at another way, white men make up 30 percent of the total U.S. population, based on the Census Bureau’s American Community Survey, but they account for 58 percent of state court judges, the study found. That’s a plus-28 percentage point gap.
In Kansas, the gaps were even more striking. Here, white men make up 38 percent of the state’s population, but they account for 73 percent of state judges, a difference of plus-35 percentage points.
Women make up half the population in Kansas, but they hold only 18 percent of the judicial positions, a gap of 32 percentage points, which ranked 47th among the 50 states and the District of Columbia.
And people of color account for 23 percent of the state population, but only 11 percent of the state judgeships, a gap of 12 percentage points, which is slightly narrower than the national gap. That ranked 30th in the nation.
Combining the two, the study found Kansas had a 57-point gap between the percentage of women and minorities on the bench versus women and minorities in the general population, ranking the state 42nd in the nation for racial and gender parity in its state courts.
Those gaps are significant, the report stated, especially true at the trial court level because those courts are generally the final authority in the overwhelming majority of criminal and civil cases. It notes that most cases are not appealed above the trial court level, and of those that are appealed, the higher courts take only a small percentage.
The report also cited a 2009 Bureau of Justice Statistics review that found in the 75 largest counties in the U.S., more than two-thirds, 68 percent, of felony defendants were either black or Hispanic, but an estimated three-fourths of the judges are white.
“As recently as May 2016, the U.S. Supreme Court has found unconstitutional jury-selection practices that produce an all-white jury. Yet, the reality is that minority defendants face a nearly all-white trial bench in many states,” the report stated.
Blake Kavanagh, an analyst with the National Center for State Courts, told the Journal-World that nationally the gaps have a lot to do with the types of people who go to law school and become attorneys, which is almost universally a requirement for becoming a judge.
“When you’re comparing the diversity of judges on the bench versus the diversity of a population, it’s not a very fair assessment because the general population can’t be a judge,” she said. “You really need to look at who’s going to law school, who wants to become attorneys.”
Kavanagh noted that 2016 was the first year in which there were as many, if not more, female students as male students in U.S. law schools.
Stephen Mazza, dean of the University of Kansas School of Law, said in an email that KU tries to recruit a diverse student body, but that can be a difficult job.
“Our diversity percentage at KU Law has been around 20 percent during the last two years,” he said. “That’s a bit above average compared with the last decade. But we’re not resting on our laurels. We’re trying our best to encourage students from diverse backgrounds — racial, gender, socio-economic status — to apply to law school. If they don’t apply, we can’t admit them.”
NCSC recently performed its own analysis of state supreme courts — or “courts of last resort” because not all states use the same nomenclature — and found women holding 34 percent of those seats, slightly better than state courts generally.
In Kansas, though, only two of the seven state Supreme Court justices, or 28.6 percent, are women. Those are Justices Marla Luckert and Carol Beier. None are African-American or Hispanic.
At the Kansas Court of Appeals, only three of the 14 judges, or 21.4 percent, are women: Chief Judge Karen Arnold-Burger and Judges Melissa Taylor Standridge and Kathryn Gardner. Only one, Henry Green, is African-American.
Arnold-Burger said in an interview that one obstacle women face in becoming a judge is that most female attorneys early in their careers don’t go into litigation, which is the career track that is most likely to lead to a judicial opportunity.
“When I got out of law school (in 1981), when my group of women got out of law school, law firms were not knocking down our doors,” she said. “We were getting jobs generally with government because government was open to hiring women, many in-house counsel types of jobs. But unless you were a prosecutor, and I was lucky enough to have been a prosecutor, you weren’t getting a lot of litigation experience.”
Another factor at work in today’s legal community, Arnold-Burger said, is that many women who are attorneys are leaving the profession, while more and more top-tier female undergraduate students coming out of college are choosing other careers besides law, in part because the legal profession is not seen as family-friendly or as allowing much of a “work-life balance.”
“I would suppose judicial positions are more family-friendly than practicing law. Practicing law is not family-friendly at all, especially big-firm practices,” she said. “And I think firms are dealing with this issue too, because they’re seeing that their new associates are demanding more work-life balance than the older partners in the law firm ever had or ever thought you should have.”
The Douglas County District Court stands out as an exception in Kansas because five of the seven judges on the local court are women. All seven, however, are white.
University of Kansas political science professor Patrick Miller said there may be other forces at work than just who goes to law school, at least in terms of the gender gap, because similar gaps exist in executive and legislative branches of state governments as well.
“I want to say that this is pretty normal,” Miller said in an interview. “If you look at the percentage of judges who are female, they’re actually doing a little bit better than women are doing in terms of legislative and executive offices.”
In state legislatures and in Congress, Miller said, women hold about 20-25 percent of the seats, and that percentage has plateaued in recent years.
“In 1992, what we called ‘the year of the woman,’ there was a big spike in women in office at all levels,” he said. “That kind of gradually increased, but really for the last 10 years or so, if we look at the percentage of women in Congress, in state legislatures, governors, statewide constitutional offices, women have kind of peaked out at this 20-25 percent range, depending on what level of office you’re talking about.”
The Gavel Gap report said there was little difference among regions in terms of the gender gap on state court benches, with women making up about 30 percent of the judges across the board. But there were significant differences in racial and ethnic gaps.
In the South and West regions, the report noted, the general population includes more racial and ethnic minorities than the Northeast and Midwest. But the South and West do not have higher numbers of minority judges.