The Magazine


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.