Race and Gender on the Bench: How Best to Achieve Diversity in Judicial Selection

How can states increase diversity on the bench? This article begins by presuming that increasing racial and gender diversity is a worthy goal—among other positive results, a diverse bench increases the judicial system’s perceived legitimacy by increasing a diverse citizenry’s confidence that judges will treat them fairly and impartially. Next we examine the unique judicial selection systems of South Carolina and Virginia—where the entire process is controlled exclusively by the state legislature—and reach the counterintuitive conclusion that these systems actually increase judicial diversity very effectively when compared with the systems of other states. Finally, we propose four specific reforms to improve the already effective systems in South Carolina and Virginia: (1) preclude sitting legislators from membership, at least in the majority, on any merit selection commission; (2) raise the cap in South Carolina on the number of qualified applicants submitted to the General Assembly from the current three to at least ten, or in Virginia place a reasonable limit on the number of names submitted to the legislative delegation from which they may select; (3) require any merit selection commission, including the Judicial Merit Selection Committee in South Carolina, to give “substantial weight” to ethics decisions rendered by a tribunal within the judicial department; and (4) include the state’s Bar association in the selection process.