The New Diversity Crisis in the Federal Judiciary

Abstract

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 substantial progress has been made on this front, a new diversity crisis 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.

Keywords: Judicial diversity