There is a high price to pay, however, for complacency about the judges who are appointed to the courts. As a co-equal branch of government, the judiciary has the power to invalidate unconstitutional laws and orders enacted by either of the other two branches, thereby serving as a fundamental check on abuses of executive power and legislative overreach. Notwithstanding that power, in America’s democracy, it is the other two branches of government that select the country’s federal judges, the executive alone that nominates, and the Senate that decides whether to confirm the president’s selection. This interdependent power is, quite simply, both the beauty and the frailty of our system of checks and balances. It underscores that the judgment of those selecting the judges—foremost the president and each senator—is as crucial in this process as the wisdom of judges themselves.
Lawrence Goldstone: Judiciary reform is not revenge
But as of late, that wisdom has not produced a judiciary many Americans will feel they can fully trust. Each person is a complex combination of race, gender, geography, age, marital status, religion, experience, education, wealth, health, culture, political affiliation, beliefs, values, fears, sexuality, and countless other factors. Identity is the lens that filters everything and everyone we encounter. Studies have repeatedly shown that people believe their own judgments are objective, impartial, and correct, and in turn believe that others like them—in both appearance and experience—are more ethical, moral, and trustworthy. That means Americans are more prone to have confidence and trust in the judicial branch of government if it includes judges who share their physical traits, experiences, or other aspects of their identity. It is hard to underestimate the value of a trusted judiciary. At its core, that trust is the only vaccine for anarchy.
For this reason, a diverse judicial branch is not a superficial optic. Judges must engage in balancing tests, considering what a “reasonable” person would believe, what norms exist in a community, and what rights society is willing to protect. These inquiries necessarily involve value judgments that are colored by life experiences. A judiciary that includes only perspectives of the dominant class will likely yield judgments that reinforce the experience and the values of the majority.
That is not a recipe for protecting the individual liberties that are at the core of the Constitution. The public might also feel skeptical about the judiciary’s objectivity and willingness to independently check the power of the other two branches of government if the judges are a demographic and ideologic reflection of both the president and a largely homogenous Senate majority. Diversity is America’s natural state, and when that diversity is not mirrored in places of power such as boardrooms and our courts, it can breed feelings of distrust, intentional exclusion, futility, lack of meritocracy, and, for some, contempt. A judiciary that lacks diversity invites the public to question why that is the case. If Americans believe that the process for selecting judges is fundamentally unfair, the destabilizing danger is that the courts become perceived as illegitimate.
A judicial robe is a powerful and provocative symbol of justice in the United States. If America wants federal courts that instill trust and reflect democratic principles, it must work harder to ensure that the people who wear those robes resemble the full range of people in America’s communities.