Experience desired: Nonwhite women face different standard for judgeships

Women of color appointed to the federal judiciary typically have a greater depth of professional experiences and are more likely to have previously served as a judge than their white male counterparts, according to a new study coauthored by Yale political scientist Allison Harris.

The study, published in the Journal of Women, Politics & Policy, also revealed that nonwhite women are generally nominated to the federal courts earlier in their careers than appointees from other race-gender groups, a circumstance that could actually reflect discriminatory obstacles women of color face in the legal profession, the researchers suggest.

“Our study uncovers clear evidence that women of color are being evaluated differently than their white colleagues for appointments to the federal bench,” said Harris, an assistant professor of political science in Yale’s Faculty of Arts and Sciences. “For white men, the norm focuses on clerkships and experience in lucrative private practice. By contrast, the norm for nonwhite women appears to emphasize having longer resumes and prior experience as a state or local judge, meaning that they need to prove themselves by going beyond the baseline standard for white men.”

The U.S. judiciary remains overwhelmingly male and white despite efforts by recent presidents to diversify their judicial nominations. A 2019 report by the Center for American Progress showed that more than 73% of sitting federal judges were men and 80% were white.

For the new study, Harris and coauthors Laura Moyer of the University of Louisville and Rorie Spill Solberg of Oregon State University analyzed data compiled by the Federal Judicial Center, the research agency of the U.S. federal court system, on the professional backgrounds of district and circuit court judges appointed to the bench from the Clinton through the Trump presidencies — a period in which 97 women of color were confirmed to the federal bench and in which 54% of individuals confirmed as federal judges were white men. (Only 15 nonwhite women became federal judges during the Carter, Reagan, and George H.W. Bush administrations, the researchers noted.)

Harris and her coauthors measured various professional experiences these judges had accrued between completing law school — including clerkships, private practice, non-federal judgeships, and work as a prosecutor or public defender — and their federal appointments.

They found that white men average 2.58 “types” of experience, usually including a stint in private practice, and typically practice law for about 25 years before they are nominated and confirmed to the bench, while women of color average about 2.98 types of professional experiences and 21.5 years of experience. (The average number of professional experiences for white women and nonwhite men are 2.84 and 2.91, respectively.) Fifteen percent of white men had only one type of experience — a rate three times greater than that of women of color. At the same time, 9.7% of women of color had five or more varieties of professional experience — the highest percentage among the groups — compared with just 4% of white men, according to the study.

The study demonstrated that white men typically require experience in private practice and judicial clerkships to receive a nomination to the bench. The researchers found that 93% of white men had worked in private practice, compared with 79% for women of color. Forty-seven percent of white men had served as law clerks and they are more likely to have served in highly prestigious U.S. Supreme Court clerkships than the other race-gender groups, according to the study.

The study revealed evidence that judicial experience is often a prerequisite for nonwhite women to be nominated and confirmed to the federal bench. For example, the probability of prior judicial service is 0.61 for a nonwhite woman and Democratic district court appointee with a degree from a top law school, possesses a “well-qualified” rating from the American Bar Association, and has the average career length. That probability falls to 0.31 for a white man nominated by a Democratic president with the same credentials and career length, the study found.

The analysis showed that women of color are nominated to the federal judiciary earlier in their careers, spending 3.5 fewer years practicing law on average than white men before being appointed to a district court bench. Among appeals court judges elevated from the district courts, the study’s findings suggest that nonwhite women are fast tracked compared to their colleagues from other race and gender groups. For example, nonwhite men and white men wait nearly eight years and more than six years longer, respectively, to be elevated to a circuit court seat.

“We can’t fully explain why women of color appear to be getting fast tracked to federal judgeships, but it could be caused by the leaky pipeline of nonwhite women opting out of the legal profession at various career stages due to the barriers they face,” Harris said. “In order to maintain representation of nonwhite women on the federal bench, presidents need to find nominees with different kinds of experience than the norms for white men and might end up choosing appointees at earlier stages of their careers, even though those appointees have long resumes.”