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OFF WITH OUR HEADS

The Courts Declare Themselves Guilty of Bias

Dec 1, 1997, Vol. 3, No. 12 • By HEATHER MAC DONALD
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The massacre of logic and suppression of facts are routine features of our diversity-obsessed age. We have grown accustomed to seeing university administrators, for example, torture the truth about admission standards to justify their race and gender quotas. But it still comes as something of a shock to discover diversity-driven cant coming from the judges on one of our most esteemed courts. In a fit of self-accusation, the Second Circuit -- comprising the federal courts of New York, Connecticut, and Vermont -- has issued a report on its own race and gender bias. It suggests that it will be a long time indeed before this country sheds its fixation on group rights.


Since the late 1980s, the state and federal courts have been swept up in a feverish search for internal sexism and racism. The lack of evidence for those sins has stopped very few courts from declaring themselves sinners. In the words of the Ninth Circuit's 1994 bias report: "Gender bias is alive and well. It has just gone underground." Now comes the Second Circuit's contribution to the genre -- a five-volume, 767-page exercise in duplicity. For the last three years, the circuit's Task Force on Gender, Racial, and Ethnic Fairness in the Courts, made up of six federal judges and three lawyers, has been hard at work. It has supervised a quarter-million dollars worth of polling, hearings, focus groups, and statistical analysis designed to discover even the shadow of a discriminatory thought. The effort unearthed virtually no proof of systematic bias. Yet the task force's report manages to imply that discrimination remains an ever-present possibility requiring the usual battery of diversity training and affirmative-action hiring. This document is worth studying as an example of how the bias industry keeps the myth of discrimination alive.


Any rational observer examining the Second Circuit's demographic profile would quickly conclude that the circuit deserved a citation for its " diversity." At the appellate level, 20 percent of the judges are minorities, more than four times the percentage of the attorneys practicing in the circuit's courts who are minorities. Minority candidates have a 50 percent chance of being selected as bankruptcy judges -- twice the success rate of white male candidates -- and are overrepresented on the bankruptcy bench by a factor of 2.5. Minorities are also overrepresented as magistrate judges.


The situation for women is similar: Women are more likely to be district- court judges than attorneys, and bankruptcy judges than bankruptcy attorneys, in the circuit's federal courts. And both minorities and women are overrepresented in the circuit's workforce as a whole.


As for the courts' treatment of the parties who come before them, the news there is also annoyingly good. Even the task force has to conclude from the polling data that litigants are "rarely, if ever" subject to biased behavior. And jurors were "virtually unanimous" that no one treated them inappropriately.


But diversity-mongers are not rational observers. Such reassuring data can never be allowed to stand in the way of a good bias witch-hunt. From the structure of the polling questions to the interpretation of the results, the task force and its pollsters demonstrate an ironclad determination to reach the desired result.


Early on, the task force articulates its grounding beliefs about diversity; they call to mind the Johnnie Cochran School of Justice. Diversity in public institutions is necessary, the task force announces, because it "offers some assurance to groups within society that there are at least some persons in authority who share to some degree the perspective of that group." Translation: Black people, including black judges, have a "black perspective"; Hispanics, including Hispanic judges, have a "Hispanic perspective"; women, . . . etc. It follows that a white defendant should tremble before a black judge, because the judge does not share the "perspective of [the defendant's] group." Likewise, a male plaintiff in a tort case can be assured of no justice from a female judge, who lacks the perspective of the male "group." What the task force is saying about law, echoing academic radicals, is nothing short of devastating: Race and gender may affect the outcome of a case as much as legal rules and evidence.


But this perversion of our legal tradition is just a prelude to the perversion of logic that the task force builds upon it. Confronted with the fact that the Second Circuit bench is over-supplied with women and minorities, the task force violates its own group-perspective dictum. Since diversity reassures groups that "sufficient numbers" of public officials share their " life experiences," "it is understandably desirable that appointing authorities would seek to achieve higher percentages of women and minority judges than the available pool percentages would indicate." Diversity hiring, the task force concludes, must continue.


There is nothing "understandable" about this reasoning. The ludicrous designation of courts as identity-confirming therapists justifies at most the proportional representation of "groups," not the overrepresentation of some groups at the expense of others. Why are white men any less deserving of having their "life experiences" represented on the bench in "sufficient numbers"? To the task force and its allies in the cultural elite, white men are simply non-entities.


The task force here inadvertently reveals its remarkable "heads I win, tails you lose" logic. If minorities and women are underrepresented in an institution, aggressive affirmative action is needed. If minorities and women are overrepresented, aggressive affirmative action is still needed. It turns out that proportional representation is only a floor -- there's no limit to the diversity measures an institution must take.


The task force buttresses its plea for endless diversity hiring by a number of rhetorical techniques designed to downplay the good news and overplay the " bad" news about the circuit. Understatement, beloved of the Greeks as " litotes," is a particularly useful strategy for minimizing positive data: "We note that the overall percentage of women district judges . . . (27 percent) does not compare unfavorably to the 21.7 percent of federal court practitioners who are women." Or: "Women and minorities are not significantly underrepresented in the Second Circuit's workforce." More accurately, women and minorities are overrepresented in the workforce.


The task force likewise pumps up the significance of trivially small " negative" data. It solemnly discloses that four judicial law clerks, a mere 1. 6 percent of the sample, encountered alleged gender bias more than once when interviewing with judges and that six respondents, or 2.4 percent, encountered one sexist question. Now, if the evidence had gone the other way, and only 2 percent of law clerks had said they had untroubled interviews, no one would have paid this tiny group of dissenters the slightest attention. But for an anti-racism and anti-sexism crusader, a 1.6 percent positive response requires corrective action.


Despite the pollsters' zealous solicitation of racial and sexual hurt feelings, the survey turned up disappointingly little bad news about bias on the bench. A large majority of respondents, white and black, reported no mistreatment of them or others by judges. Fortunately, the pollsters insured against just such a calamity by analyzing behavior wholly outside the Second Circuit's jurisdiction. Incredibly, the pollsters investigated how private lawyers treat one another as part of the survey of the Second Circuit. It turns out that most alleged discrimination occurs outside the courtroom -- by other lawyers. If this is a problem, it is a problem beyond the Second Circuit's authority. Yet the task force uses such irrelevant data to pump up its discussion of the "Biased Treatment of Lawyers."


Even more remarkably, the pollsters include information about how the public treats lawyers as part of the bias survey. The one question that produced a truly rousing response was: "Have you been mistaken for a non- lawyer because of your race or ethnicity or gender in the past five years?" It turns out that a majority of female lawyers have indeed experienced this crippling humiliation. But the task-force report does not reveal by whom they were so humiliated, because the pollsters did not ask. Most likely, people off the street committed this bias offense. That such an infraction lies outside the circuit's jurisdiction is silently overlooked.


In proposing solutions to this plague of discrimination, the task force is just as creative with the facts. Take its suggestions regarding law clerks. As always, the task force starts from an unpromising set of data: First, the diversity of law clerks in the Second Circuit equals or exceeds that of the law schools. Second, only about 3 percent of the clerks surveyed said they had shied away from a particular judge because of his reputation for sexism or racism. Nevertheless, the task force calls for race- and gender-based outreach programs for law students. Why? Because the applicant pool for clerks may be limited by the "applicant's perception that his or her gender or race is a negative factor for certain judges." Remember: Only 3 percent of the clerks had professed such negative "perceptions." It takes only 3 percent, however, to trigger a finding of a hostile environment and a remediation agenda.


No diversity tract would be complete without a call for diversity training and more anti-bias bureaucracy. As usual, the task force reaches these cherished desiderata in the teeth of contrary evidence. Managers in the court system have received, in the report's words, "few, if any, complaints of discrimination or harassment." Does this mean that the courts are in fact treating their employees equitably? By no means. The task force promptly concludes that "employees' fear of retaliation may cause underreporting of discriminatory or harassing conduct." The task force even has data to back up its speculation: Four percent of the survey respondents said they had remained silent about bias because of fears of retaliation! That's all that's needed to march the entire circuit off to diversity training and to saddle it with the deadening weight of additional affirmative-action red tape.


Like an obsessive-compulsive, our culture can't stop frantically tracking down phantom bias, prerequisite as it is for the entire regime of preferences. That the courts themselves have taken up the hunt and cast aside their traditional allegiance to reason and truth is a reminder of how far this country has moved from its original ideals.




Heather Mac Donald is a contributing editor of the Manhattan Institute's City Journal.