Have Faith in Our (More Diverse) Judges to Solve This Mess

This presidential election has degenerated into a paltry partisan battle for short-term advantage in which the courts of the land have become just another convenient whistle-stop on the post-election tour. Lost in this battle is the impact that this microscopic look at how electoral sausage is made is having on the public’s already fragile faith in the judicial branch of our government.

But amid the ugly charges of partisan judicial activism, racial disenfranchisement, vote-stealing, staged riots and more, the racial and gender diversity of our judges today can provide an avenue to have faith in the unseen process of judicial decision-making that is needed to calm the country. Because if the courts are to help us bring closure to the closest election in our nation’s history, we must believe that the cumulative decision-making of the judicial branches of Florida and the United States is legitimate, even though we may disagree with the results.

The Florida Supreme Court, which has a majority of Democratic appointments, and the U.S. Supreme Court, which has a majority of Republican appointments, share a common vulnerability: Any decision they make will require a large group of voters to trust that the decision is legitimate, even though many may not agree with the outcome. That’s one difference between a constitutionally ordered democracy and an unruly mob of disappointed partisans shouting, “We was robbed.”

In the past, we found our way to trusting the courts by believing in the myth that all judges were neutral, devoid of all personal identity and prejudice. But we must accept that judges, even Supreme Court justices, are human beings who have well-formed ideological preferences and experiences that guide them.

In the first approach, the race, gender and ideological and political preferences of each judge would seem to be irrelevant. In the second, these publicly known personal factors bring to the secret debate among judges a mixture of human experience that is sufficiently diverse that the decisions that later emerge can be trusted.

This second view is not a simple-minded argument for a judicial Noah’s Ark. Once appointed, judges can, in fact, defy race and gender stereotypes. The views of justices like Clarence Thomas and Sandra Day O’Connor of the U.S. Supreme Court are sometimes at odds with the majority of their race or gender classifications, a paradox that can contribute to the fragile fabric of public trust. Oddly enough, their conservatism inspires support from those who might once have discriminated against them--in the case Justice O’Connor, those who refused to hire her after she graduated third in her class at Stanford Law School; in the case of Justice Thomas, those who mocked him because of his dark skin color in the undergraduate dorms at Holy Cross College in Worcester, Mass.

Trust in the fairness of judicial decisions consists of surprising threads of unpredictable commonality between judges and the rest of us. Who would have thought that I, a black woman Democrat from California, while serving as a White House fellow and special assistant to President Reagan’s first attorney general, would have seen Justice O’Connor as a role model? I did when I discovered in the course of my work on her nomination that, despite her brilliance, because of sex discrimination, she had spent large periods of time out of the work force raising her sons.

Her eventual selection as the first woman Supreme Court justice made it easier for me, while pregnant with my second child, to agree to serve as the first African American president of America’s oldest scholarly association of law professors.

The delicious ironies of unpredictable commonality create opportunities for us all. In the course of my legal representation of Anita Hill during her testimony in Justice Thomas’ confirmation hearings, I learned that Thomas had been an inspiration to his mentor, John Danforth, who was a U.S. senator from Missouri, which was once a slaveholding state.

I am certain that I will not agree with all of the judicial decisions made to bring an end to this partisan mess over the presidency. However, I do know that I agree with the late U.S. Supreme Court Justice Harry A. Blackmun, a Nixon appointee, that “one’s philosophy, one’s experience, one’s exposure to the raw edges of human experience, one’s religious training, one’s attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe are all likely to influence and color one’s thinking and conclusions.”

I believe that, collectively, a diverse group of judges--judges who draw upon all aspects of their intelligence, experience and identity to make decisions--deserve my trust, because such a group looks more like America than at any other time in history.