The private lives of California’s judges

State lawmakers may have had the best of intentions when they approved legislation last year to require that California judges be asked in an annual demographic survey about their sexual orientation. The goal was to assess diversity on the bench. Instead, the Legislature has inappropriately and ineffectively intruded into the private lives of judges.

A good portion of the judiciary seems to think so too. Answering all or any of the survey questions is optional, and 40% of those who responded opted not to answer the question about sexual orientation, according to the recently released survey, which also queried jurists about their race, ethnicity and gender. The Administrative Office of the Courts — the staff agency to the Judicial Council of California — is required by the law to collect the information on all judges and judicial officers in the state. The data are released in the aggregate, arranged by court systems, not by individual jurists; no one is identified. However, in some small jurisdictions, that anonymity may be meaningless. For example, in the Mariposa court, both judges who responded to the survey declined to say whether they are heterosexual, gay, lesbian, bisexual or transgender. Overall, 672 judges and officers, from the Supreme Court to the trial courts, declined to answer. An additional 1,005 did answer the question. (Nineteen said they were lesbian, 17 said they were gay, and one answered transgender.)

Diversity on the bench is important, and the state should encourage it; the courts should be representative of those they serve. But this survey question comes out of the blue; there’s been no allegation, to our knowledge, that there are disproportionately few gay judges on the California bench or that their sexual orientation has had much effect on the quality of justice meted out.

There may come a day when asking people whether they are gay is as innocuous as asking where they live. But we’re not there yet. The revelation of a judge’s sexual orientation continues to spark controversy (as in the case of former Chief U.S. District Judge Vaughn R. Walker, who heard the Proposition 8 case), and questions about people’s private lives are not yet routine.

But even if you believe the question is appropriate, the bigger problem in this case is that it’s hard to imagine how the state can use the data. With 40% of respondents declining to answer, the survey is an incomplete measure of diversity anyway. This was an ill-conceived attempt at promoting diversity on the part of the Legislature.