The simple math of a justice system that looks like America
Then a voice cries out. This is Rep. Glenn Grothman (R-Wis.), furious that you’re so biased toward lollipops.
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I hope you will forgive my allegory bleeding into reality. It was a comment offered by Grothman on the House floor Thursday, however, that spurred the example.
“Apparently his first two years, President Biden appointed 97 federal judges. Of the 97 federal judges, I expected maybe 25 or 30 to be white because I know President Biden was in no rush to appoint more white people,” Grothman said. complained. “Five of the 97 judges were white. Among them, two were homosexual. So almost impossible for a white guy who isn’t gay to be named.
With all those lollipops added, it’s almost impossible for a candy bar to fit in a goody bag! Except, of course, those goodie bags already contain a disproportionate number of candy bars. And the same goes for the Whites on the bench.
Suppose you think the justice system should reflect the country’s diversity, as Biden does. It’s easy to gauge how close we are to that goal, thanks to Census Bureau estimates of population composition and bench analysis. The American Constitution Society (ACS), for example, has an analysis of the racial and gender composition of the judges who “constitute the Supreme Court of the United States, the circuit courts, the district courts and the United States Court of International Trade “.
And here is the comparison we get. Note that we’ve added two measures of the country’s population: both its overall racial composition and the composition of adults (given that relatively few children end up being appointed to the federal bench). That orange bar at the top—white judges—extends far beyond the orange bars in the middle and bottom because white people make up a higher percentage of the bench than the population.
We can see it another way. The graph below compares the percentage of judges in each racial group (on the vertical axis) with the percentage of the adult population that each constitutes (on the horizontal axis). Any point above the diagonal line represents a racial group that is onrepresented in the justice system – and the farther he is from the line, the greater this overrepresentation.
You can see that three groups are overrepresented: Native Americans, Blacks and Whites. But Native Americans (and Alaska Natives) are only marginally overrepresented. Whites are overrepresented by six percentage points. Hispanics are belowrepresented by eight dots.
And that’s between adults! Non-white Americans tend to be younger than white Americans, so the imbalance is even more stark when comparing the justice system to the general population. Whites are overrepresented by 10 percentage points compared to the overall population.
It doesn’t make sex explode. When we do, we see an even more immediately obvious disproportion.
Remember that we assume that you believe the judiciary should reflect the diversity of the country. The question then is how to correct the imbalance demonstrated above.
You could, as Barack Obama did, make appointments that more closely reflect the population, hoping to slowly adjust the justice system to align with the population. The ACS estimates that 64 percent of Obama appointees were white and 58 percent were male, both lower than the existing percentages of those groups in the court system.
And then Donald Trump arrived. Eighty-four percent of its appointees were white and 76% were male. The ratio skewed the other way very quickly.
If we extend our goody bag analogy, you can even out the bags by going to six lollipops for three candy bars. But all this only slows down the effort to achieve the right balance and, remember, you only have a short time to reach your goal. So you could be forgiven for just trying to balance things out faster.
Especially since there’s a guy who keeps offering to help – asking when he can get a ride – wearing a T-shirt that says “Lollipops kill”.
Turning to the other point: maybe you don’t think the judiciary should reflect the country. Maybe you think there is no difference in the experiences and values of men and women or whites and Hispanics. Perhaps you think the driving force behind so many white men graduating from elite universities and getting clerk jobs for top judges is merit. In this case, none of these calculations matter because they reflect an effort that you are indifferent to.
It is not clear from Grothman’s argument where he falls on this division. But it’s clear he views Biden’s efforts with disdain — that he was prepared to view them with disdain before seeing the numbers, but had more disdain then. So he decided to make it part of his speech.
This is indicative of an existing undercurrent in American politics. Efforts to address race and gender imbalances, to correct instances of bias, are presented as themselves being examples of bias. This is shifting the blame: You appoint too many non-white judges! – after a disproportionate number of white justices have already been confirmed on the bench. You try to increase participation among non-white voters! – after systemic imbalances have already ensured a whiter electorate.
You only add lollipops! – after the goodie bags are already out of whack. You can’t solve a problem without solving it.
And that’s assuming you want to fix the problem.