The Magazine

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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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.