Blacks on the bench

Political Science Quarterly

Volumn 119, Issue 4, 2004, Pages 655-675

  Scherer, Nancy ^a  

^a OHIO STATE UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 11244338196     PISSN: 00323195     EISSN: None     Source Type: Journal    
DOI: 10.1002/j.1538-165X.2004.tb00534.x     Document Type: Review

References (79)

1. William Clinton, "Judiciary Suffers Racial, Sexual Lack of Balance," National Law Journal 12 (November 1992): 15; Jesse J. Holland, "Clinton Appoints First Black to Southern Appellate Court," Legal Intelligencer 28 (December 2000); Elliot E. Slotnick, "Lowering the Bench or Raising it Higher: Affirmative Action and Judicial Selection During the Carter Administration," Yale Law and Policy Review 1 (1983): 270-306.
2. William Clinton, "Judiciary Suffers Racial, Sexual Lack of Balance," National Law Journal 12 (November 1992): 15; Jesse J. Holland, "Clinton Appoints First Black to Southern Appellate Court," Legal Intelligencer 28 (December 2000); Elliot E. Slotnick, "Lowering the Bench or Raising it Higher: Affirmative Action and Judicial Selection During the Carter Administration," Yale Law and Policy Review 1 (1983): 270-306.
3. William Clinton, "Judiciary Suffers Racial, Sexual Lack of Balance," National Law Journal 12 (November 1992): 15; Jesse J. Holland, "Clinton Appoints First Black to Southern Appellate Court," Legal Intelligencer 28 (December 2000); Elliot E. Slotnick, "Lowering the Bench or Raising it Higher: Affirmative Action and Judicial Selection During the Carter Administration," Yale Law and Policy Review 1 (1983): 270-306.
4. Hannah F. Pitkin, The Concept of Representation (Berkeley: University of California Press, 1967), 66-91.
5. A. Leon Higginbotham, "Seeking Pluralism in Judicial Systems: The American Experience and the South African Challenge," Duke Law Journal 42 (1993): 1028-1068; Slotnick, "Lowering the Bench," 270; Carl Tobias, "Fostering Balance on the Federal Courts," American University Law Review 47 (1998): 935-961.
6. A. Leon Higginbotham, "Seeking Pluralism in Judicial Systems: The American Experience and the South African Challenge," Duke Law Journal 42 (1993): 1028-1068; Slotnick, "Lowering the Bench," 270; Carl Tobias, "Fostering Balance on the Federal Courts," American University Law Review 47 (1998): 935-961.
7. A. Leon Higginbotham, "Seeking Pluralism in Judicial Systems: The American Experience and the South African Challenge," Duke Law Journal 42 (1993): 1028-1068; Slotnick, "Lowering the Bench," 270; Carl Tobias, "Fostering Balance on the Federal Courts," American University Law Review 47 (1998): 935-961.
8. Samuel Krislov, Representataive Bureaucracy (Englewood Cliffs, NJ: Prentice Hall, 1974).
9. Sherrilyn A. Ifill, "Racial Diversity on the Bench: Beyond Role Models and Public Confidence," Washington & Lee Law Review 57 (2000): 405-495.
10. Higginbotham, "Seeking Pluralism," 1034.
11. Ibid., 1042.
12. Gregory A. Caldeira and James L. Gibson, "The Etiology of Public Support for the Supreme Court," American Journal of Political Science 36 (1992): 635-664.
13. F. Glenn Abney and John D. Hutchinson, Jr., "Race Representation and Trust: Changes in Attitudes After the Election of a Black Mayor," Public Opinion Quarterly 45 (1981): 91-101
14. James L. Gibson and Gregory A. Caldeira, "Blacks and the United States Supreme Court: Models of Diffuse Support," Journal of Politics 54 (1992): 1120-1145.
15. It should be noted, however, that certain jurisdictions continue to be under-represented by black judges (as compared to the total African American population in that jurisdiction).
16. Ifill, "Racial Diversity," 405; Randall Kennedy, Race, Crime and the Law (New York: Pantheon Books, 1997), 136-167.
17. Ifill, "Racial Diversity," 405; Randall Kennedy, Race, Crime and the Law (New York: Pantheon Books, 1997), 136-167.
18. Alfred Blumstein, "Mass Incarceration: Perspectives on U.S. Imprisonment: Incarceration Trends," Chicago Law School Roundtable 1 (2000): 91-103; Paul Butler, "Affirmative Action and the Criminal Law," Colorado Law Review 68 (1997): 841-889.
19. Alfred Blumstein, "Mass Incarceration: Perspectives on U.S. Imprisonment: Incarceration Trends," Chicago Law School Roundtable 1 (2000): 91-103; Paul Butler, "Affirmative Action and the Criminal Law," Colorado Law Review 68 (1997): 841-889.
20. Sandra Lee Browning and Linqun Cao, "The Impact of Race on Criminal Justice Ideology," Justice Quarterly 9 (1992): 685-699.
21. Alfred Blumstein and Jacqueline Cohen, "Sentencing of Convicted Offenders: An Analysis of the Public's View," Law and Society Review 14 (1980): 223-261.
22. Robert M. Bohm, "American Death Penalty Opinion, 1936-1986," in Robert M. Bohm, ed., The Death Penalty in America: Current Research (Cincinnati, OH: Anderson Publishing Co., 1991); National Institute of Justice, Sourcebook of Criminal Justice Statistics-2000 (Washington, DC: U.S. Government Printing Office, 2001), Table 2.60.
23. Robert M. Bohm, "American Death Penalty Opinion, 1936-1986," in Robert M. Bohm, ed., The Death Penalty in America: Current Research (Cincinnati, OH: Anderson Publishing Co., 1991); National Institute of Justice, Sourcebook of Criminal Justice Statistics-2000 (Washington, DC: U.S. Government Printing Office, 2001), Table 2.60.
24. Francis T. Cullen, Linqun Cao, Robert H. Langworthy, Sandra Lee Browning, Renee Kopache, and Thomas J. Stevenson, "Stop or I'll Shoot: Racial Differences in Support for Police Use of Deadly Force," Sociological Quarterly 32 (1996): 231-249.
25. Linqun Cao and James Franks, "Race, Community Contest and Confidence in the Police," American Journal of Police 15 (1996): 3-22; Scott H. Decker, "Citizen Attitudes Toward the Police: A View of Past Findings and Suggestions for Future Policy," Journal of Police Science and Administration 9 (1981): 80-87; National Institute of Justice, Sourcebook, Tables 2.16, 2.25; Charles W. Peek, George D. Lowe, and Jon P. Alston, "Race and Attitudes Toward Local Police," Journal of Black Studies 11 (1981): 361-374.
26. Linqun Cao and James Franks, "Race, Community Contest and Confidence in the Police," American Journal of Police 15 (1996): 3-22; Scott H. Decker, "Citizen Attitudes Toward the Police: A View of Past Findings and Suggestions for Future Policy," Journal of Police Science and Administration 9 (1981): 80-87; National Institute of Justice, Sourcebook, Tables 2.16, 2.25; Charles W. Peek, George D. Lowe, and Jon P. Alston, "Race and Attitudes Toward Local Police," Journal of Black Studies 11 (1981): 361-374.
27. Linqun Cao and James Franks, "Race, Community Contest and Confidence in the Police," American Journal of Police 15 (1996): 3-22; Scott H. Decker, "Citizen Attitudes Toward the Police: A View of Past Findings and Suggestions for Future Policy," Journal of Police Science and Administration 9 (1981): 80-87; National Institute of Justice, Sourcebook, Tables 2.16, 2.25; Charles W. Peek, George D. Lowe, and Jon P. Alston, "Race and Attitudes Toward Local Police," Journal of Black Studies 11 (1981): 361-374.
28. Linqun Cao and James Franks, "Race, Community Contest and Confidence in the Police," American Journal of Police 15 (1996): 3-22; Scott H. Decker, "Citizen Attitudes Toward the Police: A View of Past Findings and Suggestions for Future Policy," Journal of Police Science and Administration 9 (1981): 80-87; National Institute of Justice, Sourcebook, Tables 2.16, 2.25; Charles W. Peek, George D. Lowe, and Jon P. Alston, "Race and Attitudes Toward Local Police," Journal of Black Studies 11 (1981): 361-374.
29. National Institute of Justice, Sourcebook, Table 2.30.
30. Adam Dobrin, Brian Wiersema, Colin Lofton, and David MacDowall, Statistical Handbook on Violence in America (Phoenix, AZ: Oryx Press, 1993), 321.
31. Richard W. Brooks, "Fear and Fairness in the City: Criminal Enforcement and Perceptions of Fairness in Minority Communities," University of Southern California Law Review 73 (2000): 1219-1273; Martha L. Henderson, Francis T. Cullen, Linqun Cao, Sandra Lee Browning, and Renee Kopache, "The Impact of Race on Perceptions of Criminal Injustice," Journal of Criminal Justice 25 (1997): 447-462.
32. Richard W. Brooks, "Fear and Fairness in the City: Criminal Enforcement and Perceptions of Fairness in Minority Communities," University of Southern California Law Review 73 (2000): 1219-1273; Martha L. Henderson, Francis T. Cullen, Linqun Cao, Sandra Lee Browning, and Renee Kopache, "The Impact of Race on Perceptions of Criminal Injustice," Journal of Criminal Justice 25 (1997): 447-462.
33. Edward G. Carmines and James A. Stimson, Issue Evolution: Race and the Transformation of American Politics (Princeton, NJ: Princeton University Press, 1989).
34. Harry A. Chernoff, Christopher M. Kelly, and John R. Kroger, "The Politics of Crime," Harvard Journal on Legislation 33 (1996): 527-579.
35. Thomas B. Edsall and Mary D. Edsall, Chain Reaction: The Impact of Race, Rights and Taxes on American Politics (New York: Norton, 1991), 99-115.
36. Chernoff, Kelly, and Kroger, "Politics of Crime," 527.
37. Louis Bolce, Gerald DeMaio, and Douglas Muzzio, "Blacks and the Republican Party: The 20 Percent Solution," Political Science Quarterly 107 (1992): 63-79.
38. This is not to suggest, however, that blacks are more liberal than whites in all issue areas. To the contrary, prior research suggests that black Democrats are more conservative than white Democrats on issues such as abortion and school prayer. Michael Combs and Susan Welch, "Blacks, Whites and Attitudes Toward Abortion," Public Opinion Quarterly 46 (1982): 510-520; Philip E. Secret, James B. Johnson, and Susan Welch, "Racial Differences in Attitudes Toward the Supreme Court's Decision on Prayer in Public Schools," Social Science Quarterly 67 (1986): 877-885.
39. This is not to suggest, however, that blacks are more liberal than whites in all issue areas. To the contrary, prior research suggests that black Democrats are more conservative than white Democrats on issues such as abortion and school prayer. Michael Combs and Susan Welch, "Blacks, Whites and Attitudes Toward Abortion," Public Opinion Quarterly 46 (1982): 510-520; Philip E. Secret, James B. Johnson, and Susan Welch, "Racial Differences in Attitudes Toward the Supreme Court's Decision on Prayer in Public Schools," Social Science Quarterly 67 (1986): 877-885.
40. American Bar Association, "American Bar Association Report on Perceptions of U.S. Justice System," Albany Law Review 62 (1999): 1307-1346.
41. Michael C. Dawson, Behind the Mule: Race and Class in African-American Politics (Princeton, NJ: Princeton University Press, 1994).
42. Leslie Espinoza and Angela P. Harris, "Embracing the Tar-Baby: LatCrit Theory and the Sticky Mess of Race," California Law Review 85 (1997): 1585-1644.
43. Jennifer A. Segal, "Representative Decision Making on the Federal Bench: Clinton's District Court Appointees, Political Research Quarterly 53 (2000): 137-150; Thomas M. Uhlman, "Black Elite Decision Making: The Case of Trial Judges," American Journal of Political Science 22 (1978): 884-895; Thomas G. Walker and Deborah J. Barrow, "The Diversification of the Federal Bench: Policy and Process Ramification," Journal of Politics 47 (1985): 596-617; Susan Welch, Michael Combs, and John Gruhl, "Do Black Judges Make a Difference?" American Journal of Political Science 32 (1988): 126-136.
44. Jennifer A. Segal, "Representative Decision Making on the Federal Bench: Clinton's District Court Appointees, Political Research Quarterly 53 (2000): 137-150; Thomas M. Uhlman, "Black Elite Decision Making: The Case of Trial Judges," American Journal of Political Science 22 (1978): 884-895; Thomas G. Walker and Deborah J. Barrow, "The Diversification of the Federal Bench: Policy and Process Ramification," Journal of Politics 47 (1985): 596-617; Susan Welch, Michael Combs, and John Gruhl, "Do Black Judges Make a Difference?" American Journal of Political Science 32 (1988): 126-136.
45. Jennifer A. Segal, "Representative Decision Making on the Federal Bench: Clinton's District Court Appointees, Political Research Quarterly 53 (2000): 137-150; Thomas M. Uhlman, "Black Elite Decision Making: The Case of Trial Judges," American Journal of Political Science 22 (1978): 884-895; Thomas G. Walker and Deborah J. Barrow, "The Diversification of the Federal Bench: Policy and Process Ramification," Journal of Politics 47 (1985): 596-617; Susan Welch, Michael Combs, and John Gruhl, "Do Black Judges Make a Difference?" American Journal of Political Science 32 (1988): 126-136.
46. Jennifer A. Segal, "Representative Decision Making on the Federal Bench: Clinton's District Court Appointees, Political Research Quarterly 53 (2000): 137-150; Thomas M. Uhlman, "Black Elite Decision Making: The Case of Trial Judges," American Journal of Political Science 22 (1978): 884-895; Thomas G. Walker and Deborah J. Barrow, "The Diversification of the Federal Bench: Policy and Process Ramification," Journal of Politics 47 (1985): 596-617; Susan Welch, Michael Combs, and John Gruhl, "Do Black Judges Make a Difference?" American Journal of Political Science 32 (1988): 126-136.
47. Segal, "Representative Decision Making," 137; Walker and Barrow, "Diversification," 595.
48. Segal, "Representative Decision Making," 137; Walker and Barrow, "Diversification," 595.
49. Uhlman, "Black Elite Decision Making," 884; Walker and Barrow, "Diversification," 595; Welch, Combs, and Gruhl, "Do Black Judges," 126.
50. Uhlman, "Black Elite Decision Making," 884; Walker and Barrow, "Diversification," 595; Welch, Combs, and Gruhl, "Do Black Judges," 126.
51. Uhlman, "Black Elite Decision Making," 884; Walker and Barrow, "Diversification," 595; Welch, Combs, and Gruhl, "Do Black Judges," 126.
52. Jon Gottschall, "Carter's Judicial Appointments: The Influence of Affirmative Action and Merit Selection on Voting on the U.S. Courts of Appeals," Judicature 67 (1983): 165-173.
53. Jeffrey A. Segal, "Supreme Court Justices as Human Decision Makers: An Individual-Level Analysis of the Search and Seizure Cases," Journal of Politics 67 (1986): 938-955; Jeffrey A. Segal, "Predicting Supreme Court Cases Probabilistically: The Search and Seizure Cases, 1962-1981," American Political Science Review 78 (1983): 891-900.
54. Jeffrey A. Segal, "Supreme Court Justices as Human Decision Makers: An Individual-Level Analysis of the Search and Seizure Cases," Journal of Politics 67 (1986): 938-955; Jeffrey A. Segal, "Predicting Supreme Court Cases Probabilistically: The Search and Seizure Cases, 1962-1981," American Political Science Review 78 (1983): 891-900.
55. Although I would have liked to have compared the voting behavior of black judicial appointees versus white appointees of Republican presidents, there were only six votes rendered by four black Republican judges - not enough to produce statistically meaningful results.
56. As is explained in the Appendix, this sampling technique is designed to simulate a sample of all cases-close cases and routine cases.
57. David Adamany, "The Party Variable in Judges' Voting: Conceptual Notes and a Case Study," American Political Science Review 62 (1969): 57-73; Lee Epstein, Thomas G. Walker, and William J. Dixon, "The Supreme Court and Criminal Justice Disputes: A Neoinstitutional Perspective," American Journal of Political Science 33 (1989): 825-841; C. Neal Tate, "Personal Attribute Models of the Voting Behavior of United States Surpeme Court Justices: Liberalism in Civil Liberties and Economic Decisions," American Political Science Review 75 (1981): 355-367.
58. David Adamany, "The Party Variable in Judges' Voting: Conceptual Notes and a Case Study," American Political Science Review 62 (1969): 57-73; Lee Epstein, Thomas G. Walker, and William J. Dixon, "The Supreme Court and Criminal Justice Disputes: A Neoinstitutional Perspective," American Journal of Political Science 33 (1989): 825-841; C. Neal Tate, "Personal Attribute Models of the Voting Behavior of United States Surpeme Court Justices: Liberalism in Civil Liberties and Economic Decisions," American Political Science Review 75 (1981): 355-367.
59. David Adamany, "The Party Variable in Judges' Voting: Conceptual Notes and a Case Study," American Political Science Review 62 (1969): 57-73; Lee Epstein, Thomas G. Walker, and William J. Dixon, "The Supreme Court and Criminal Justice Disputes: A Neoinstitutional Perspective," American Journal of Political Science 33 (1989): 825-841; C. Neal Tate, "Personal Attribute Models of the Voting Behavior of United States Surpeme Court Justices: Liberalism in Civil Liberties and Economic Decisions," American Political Science Review 75 (1981): 355-367.
60. Robert Carp and C.K. Rowland, Policy Making and Politics in the Federal District Courts (Knoxville: University of Tennessee Press, 1983); Donald Songer and Sue Davis, "The Impact of Party and Region on Voting Decisions in the United States Courts of Appeals, 1855-1986," Western Political Quarterly 43 (1989): 1855-1986.
61. Robert Carp and C.K. Rowland, Policy Making and Politics in the Federal District Courts (Knoxville: University of Tennessee Press, 1983); Donald Songer and Sue Davis, "The Impact of Party and Region on Voting Decisions in the United States Courts of Appeals, 1855-1986," Western Political Quarterly 43 (1989): 1855-1986.
62. Jeffrey A. Segal and Harold J. Spaeth, The Supreme Court and the Attitudinal Model (New York: Cambridge University Press, 1993).
63. James L. Gibson, "Judges' Role Orientations, Attitudes and Decisions: An Interactive Model," American Political Science Review 72 (1978): 911-922; Segal, "Supreme Court Justices," 938; Segal, "Predicting Supreme Court Cases," 891.
64. James L. Gibson, "Judges' Role Orientations, Attitudes and Decisions: An Interactive Model," American Political Science Review 72 (1978): 911-922; Segal, "Supreme Court Justices," 938; Segal, "Predicting Supreme Court Cases," 891.
65. James L. Gibson, "Judges' Role Orientations, Attitudes and Decisions: An Interactive Model," American Political Science Review 72 (1978): 911-922; Segal, "Supreme Court Justices," 938; Segal, "Predicting Supreme Court Cases," 891.
66. Tracey E. George and Lee Epstein, "On the Nature of Supreme Court Decision Making," American Political Science Review 86 (1991): 323-331.
67. Silverman v. United States, 365 U.S. 505 (1961).
68. Coolidge v. New Hampshire, 403 U.S. 443 (1971).
69. Terry v. Ohio, 392 U.S. 1 (1968).
70. These fact-based variables largely replicate Segal's model except as follows. Segal had a series of variables all designed to capture how many exceptions to the warrant requirement were present in a given case. The existence of such an exception is critical because it lessens the government's burden in justifying the search - either obviating the need for a warrant or lessening the quantum of evidence necessary to justify a warrantless search. Thus, to compare voting behavior across cases, a model should control for differences in burdens of proof. However, nothing in Supreme Court case law suggests that multiple exceptions lessen the quantum of evidence any more than one exception does. Accordingly, my model seeks only to determine whether a lesser quantum of evidence was required by the court to justify the search. For purposes of parsimony, the model I use picks up differences in evidentiary burdens in three ways: by controlling for the place of the search; by capturing whether the search is full-blown or of a limited nature; and finally, by controlling for whether the search took place at a border, where even a lesser quantum of evidence (no suspicion) may justify a detention or search.
71. I divide the western region into separate variables for the Ninth and Tenth Circuits. This is because the Ninth Circuit is generally deemed to be more liberal than all other circuits and thus, should not be aggregated with a more conservative circuit like the Tenth Circuit. In no other geographic region, however, is there reason to believe that voting patterns will differ by circuits.
72. Although I would have liked to have controlled for the race of the defendant, this variable is omitted because it is never reported in the courts' opinions, However, because I have no reason to believe that any of the other variables are highly correlated with the race of the defendant, I do not believe this omission produces biased coefficients.
73. The reader may contact the author for a full report of logit coefficients from these models. Also, it should be noted that the models contain some coefficients that were not statistically significant in order to satisfy the referees that a variety of different variables were explored.
74. American Bar Association, "American Bar Association Report," 1307.
75. Gary King and Langche Zeng, "Explaining Rare Events in International Relations," International Organization 55 (2001): 693-715.
76. See, for example, Mark Sandalow, "Clinton Blasts Senate Over Court Delays," San Francisco Chronicle, 1 October 1999, A3.
77. Donald R. Songer, "Consequential and Non-Consequential Decisions in Unanimous Opinions of the United States Courts of Appeals," American Journal of Political Science 26 (1982): 225-239; Philip L. Dubois, "The Illusion of Judicial Consensus Revisited: Partisan Conflict on an Intermediate State Court of Appeals," American Journal of Political Science 32 (1988): 946-967.
78. Donald R. Songer, "Consequential and Non-Consequential Decisions in Unanimous Opinions of the United States Courts of Appeals," American Journal of Political Science 26 (1982): 225-239; Philip L. Dubois, "The Illusion of Judicial Consensus Revisited: Partisan Conflict on an Intermediate State Court of Appeals," American Journal of Political Science 32 (1988): 946-967.
79. Gary King and Langche Zeng, "Explaining Rare Events in International Relations." International Organization 55 (2001): 693-715.