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Affirmative Action in Judicial Selection Essay

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Updated: Jun 19th, 2020

Introduction

The judicial system is one of the most important structures in modern society. This system ensures that the laws of the land are well articulated. Judges provide rulings in cases where the laws have been violated or disputes among individuals exist. By engaging in these activities, judges ensure that harmony is preserved in the society and just retribution is served to offenders when necessary. Typically, judges are appointed to their office on a basis of merit in the legal profession.

However, this system has led to an underrepresentation of minority and disadvantaged groups in the judiciary. There has therefore been advocacy for some from of affirmative action to be implemented in the selection of judges. In practice, Affirmative Action is made up of a number of measures put in place to guarantee access to some occupations by groups in the society that would be excluded or underrepresented in the positions if no policy intervention was made. I am in support of using the affirmative action strategy to judicial selection in our country. This paper will highlight a number of reasons why some form of affirmative action in the selection of judges would not only benefit the disadvantaged and minority groups but also have a positive impact on the country’s judicial system.

A Case for Affirmative Action in Judge Selection

An important merit of the affirmative action in the selection of judges is that is ensures diversification in the bench. Diversity is crucial to the effective functioning of the legal profession. Malleson declares that “the lack of diversity in the composition of the judiciary has a corrosive and damaging effect on the works of the courts” (126).

Without diversity, there is likelihood that the court will be viewed as a system that advocates for the ruling race instead of an institution committed to dispensing justice in an impartial manner. This is an undesirable situation and the government is therefore keen to bring about diversity. Malleson notes that the continuing lack of diversity in the make-up of the judiciary is one of the major reasons why affirmative action policies in relation to the judge selection process should be implemented widely (126).

Affirmative action presents the most effective way to ensure that more disadvantaged groups and minority lawyers are appointed to the bench. This results in a judicial system that is occupied by judges from different social groups. With such a wide variety of judges, there is a perception that the judicial system will be impartial when carrying out the law. The citizens will therefore have greater faith in the judicial system since they will feel represented in the institution.

Affirmative action brings about the placement of disadvantaged groups and minorities on the bench therefore sending a positive message to these groups. There is a general view that the judiciary is restricted to certain members of the society. This view is reinforced by the fact that there is an overrepresentation of judges from the ruling race. Affirmative action ensures that the minority groups are given access to judge positions. The judiciary is therefore no longer seen as being restricted to certain groups in the society.

Scherer states that when members of these groups see individuals from their group on the bench, they are assured that they also have access to positions of influence (74). This has a legitimizing effect on the courts as an institution since it provides public confidence in the system. All members of the society develop the feeling that they can be a part of the judicial system if they aspire to.

Another importance of affirmative action is that is ensures that the special interests of disadvantaged groups and minorities are represented in the judiciary. There are some issues that can only be effectively understood by members of the minority group (Scherer 74).

Having a judge from such a group will ensure that the issues are well understood due to the shared common life experiences. The judge from the disadvantaged or minority group will be able to provide special insight to other judges on matters that are unique to the group. Scherer asserts that without the input of a judge from the minority group, “the court will be left with only its own self-perpetuating views, preferences and prejudices to inform its decisions” (75). This prejudices and preferences are at times wrong leading to poor decisions being made. Affirmative action ensures that there is at least one judge who is intimate with the issues of the disadvantaged or minority groups since he/she is a member of the said groups. The court benefits from these insiders enabling it to make the best decisions in all cases.

The judicial system benefits from the different judicial perspective brought to the bench by disadvantaged and minority groups judges. In many instances, the legal profession relies on the subjective view of the judges. Posner declares that law differs from science in lacking cogent, objective methods for determining the truth or its proposition (16). Due to the lack of these objective methods, judges are likely to sometimes fall back to on their personal values and experiences when passing rulings. Without diversity, the judicial system will be made up of homogeneous judges who simply agree with one another in a difficult case since they are drawing on a common fund of values and experiences.

Through affirmative action, the government can guarantee that the judicial profession will always be made up of individuals from different backgrounds (Kastellec 168). This will introduce diverse views in difficult cases and encourage matters to be reviewed from multiple dimensions. Studies demonstrate that the presence of a minority judge on a judge panel increases the likelihood that the judges on the panel will vote liberally (Kastellec 168). Greater representation in the judiciary for disadvantaged and minority groups therefore enhances the judicial system by ensuring that information from all segments in the society is considered when making important legal decisions.

Arguments against Affirmative Action

In spite of the aforementioned positive impact of affirmative action in the selection of judges, opponents argue that such a strategy would negatively affect the integrity of the judiciary. To begin with, opponents argue that affirmative action would pave way for the appointment of judges who lack the standard qualification for certain offices. When employing affirmative action, the appointment to the judiciary is not offered to the person with the greater skills and abilities. Instead, consideration is given to membership to a particular minority group in order to ensure access to the judiciary by this particular group.

Opponents argue that this is detrimental to the society since it prevents the society from enjoying the services of the most competent judges. Malleson notes that there is a belief that affirmative action results in a reduction in the overall quality of those selected (126). This view is entrenched in the judge selection process leading to little support for this strategy in the judicial system. While affirmative action does lead to a loss in selection opportunities for certain qualified members of the non-minority group, it does not mean that the selected individuals are incompetent. Posner notes that when the affirmative action strategy is used, the individuals chosen have impressive professional backgrounds and are often the best from their races or gender (16). This suggests that only competent and high quality persons are appointed into the judiciary. The integrity of the legal system is therefore not deteriorated by affirmative action.

Opponents of affirmative actions declare that the strategy goes against the ideals of equal employment opportunity embraced by the nation. Implementing affirmative action would require giving preferential to minority or disadvantaged groups when making appointments to the judiciary. In essence, this would lead to the unequal treatment of individuals based on their minority or non-minority status. Opponents of affirmative action declare that the government should employ a policy of strict colorblindness. Under such a policy, governmental distinctions based on race or socioeconomic backgrounds should be considered illegal (Shaw 763).

This argument is a valid since equality is an ideal that the government seeks to reach. Giving preferential treatment to any group only undermines the efforts to create a truly equal-opportunity society. However, proponents of affirmative action declare that minority and disadvantaged groups have suffered injustices that make it impossible for them to compete on the same level with the rest of the society. Shaw declares that there is a wide disparity in opportunities and attainments between minorities and non-minorities and affirmative action is by far the most viable method of redressing the effects of past discrimination (763). As such, while uniform treatment of all segments of the population is the best strategy, it cannot be used at the moment if past discriminations are to be addressed.

Conclusion

We live in a society that is still characterized by imbalances in the opportunities available to different groups. This paper set out to discuss why some measure of affirmative action in the selection of judges would be beneficial to the society. It began by defining affirmative action and why this strategy is important in modern society. The paper highlighted that this strategy brings about diversity, which is of critical importance in the judicial system. Affirmative action increases the legitimacy of the courts and ensures that the special interests of minority groups are addressed. In addition to this, it encourages liberal views among the judges and this is beneficial to the society.

The paper has shown that the arguments made against affirmative action are invalid since affirmative action does not involve the selection of incompetent judges. On the issue of discriminating the non-minority groups, the paper has shown that there are still many opportunities left since minority groups are only given limited slots. From the arguments made in this paper, it is evident that adopting an affirmative action strategy when selecting judges would have the most positive impact on the country’s judicial system. For this reasons, I fully support implementing affirmative action in the selection of judges for our courtrooms.

Works Cited

Kastellec, Jonathan. Racial Diversity and Judicial Influence on Appellate Courts. American Journal of Political Science 57.1 (2013): 167–183. Web.

Malleson, Kate. “Rethinking the Merit Principle in Judicial Selection.” Journal of Law & Society 33.1 (2006): 126-140. Web.

Posner, Richard. The Federal Courts: challenge and reform. Harvard: Harvard University Press, 2009. Print.

Scherer, Nancy. Scoring Points: Politicians, Activists, and the Lower Federal Court Appointment Process. Stanford: Stanford University Press, 2005. Print.

Shaw, Bill. “Affirmative Action: An Ethical Evaluation.” Journal of Business Ethics 7.10 (1998): 763-770. Web.

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