Judicial diversity promotes a just rule of law. It is not affirmative action for judges.

Currently, President Obama is on pace for appointing the most diverse cohort of federal judges to the bench. He has said that he believes that judges with different kinds of experiences bring empathy to the process of judges. This statement is not without controversy.

At the Sonya Sotomayor confirmation hearings diversity on the bench came under attack from Republican Senators. Repeatedly Republican senators asserted that Justice Sotomayor’s comment that “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life” showed disrespect for the rule of law. First, Senator Jeff Sessions asserted that this statement showed that she would be a judge that would play ethnic politics on the bench. John Kyl, who served on the Texas Supreme Court, asserted that the idea that a judge might bring to the bench her perspective based on experience violated the fundamental premise that the rule of law is based on neutrality

These Senators believe that justice is blind, and that judges have no precommitments when they take on a case.
However, EVERY judge brings to the bench. Each judge has a gender, a race, and a culture, and that means that he or she is bringing with him or her, some “wise” experience,

Can any judge leave behind who he or she is, her experiences, her political belief, and put on the blindfold and balance the scales of justice? Increasingly, the cognitive psychologists have shown empirically that ideology, gender, religion, culture or race frame how we make decisions. Culture influences how we process the information that we perceive and how we interpret it, at an unconscious level, even if consciously we are committed egalitarians. Making decisions with one’s gut, unconscious cognitive processing, can also tap into our prejudices and what culture has taught us to think as the way things are -- women stay at home, most Mexicans are illegal, same sex relationships are “unnatural” etc.

Diversity in group decision counters unconscious bias. It is through the process of engagement, challenging each others’ premises and conclusions, that we are forced to question that gut intuition and re-examine and think through our decisions. Careful more deliberative thinking is less likely to be biased. And that is the main reason that a diverse judiciary is important.

By Sylvia Lazos