Judicial Selection Diversity Discretion Inclusion and The Idea of Justice

JUDICIAL SELECTION: DIVERSITY, DISCRETION,
INCLUSION, AND THE IDEA OF JUSTICE

NATALIE GOMEZ-VELEZ*
I. INTRODUCTION
Judicial selection norms are being tested in significant ways. The
current President Donald J. Trump is breaking standards of governance and
political discourse related to judging and the rule of law in troubling and
dangerous ways. At the same time, the abandonment of years of bi-partisan
approaches to judicial selection in an era of extreme political polarization in
a bald effort to gain “conservative” control of the federal courts,1 has raised
the stakes for judges, justices and the process of judicial selection. The
implications of this shift are likely to be experienced for decades. The
United States’ constitutional system, governed by adherence to the rule of
law in a structure of separated powers, checks and balances is under
significant stress given presidential statements and actions that run counter
to law and well-established governance norms and are largely unchecked by
Congress. Moreover, concerns about blatant racial and ethnic bias and
animus by the current President further highlight the importance of an
independent, impartial, inclusive, and accountable judiciary to check
unlawful and unconstitutional actions.
*
Professor of Law, City University of New York School of Law. My thanks to Andrea
McArdle, Ruthann Robson, Janet Calvo, and participants on the CUNY Law Professional
Development Committee for helpful comments on earlier drafts of this article and to Roberto
Velez for his editorial comments and steadfast support during the production of this article.
I am grateful as well to Dean Mary Lu Bilek and Academic Dean Ann Cammett for their
institutional and personal support for faculty scholarship. Many thanks to Irene Castro,
Mahari Simmonds, and Nicole Buckley for helpful research assistance. Any errors or
omissions are my own.
1
See, e.g., Jonathan Bernstein, Mitch McConnell’s Senate Makes Judges, Not Laws,
BLOOMBERG (May 10, 2019), https://www.bloomberg.com/opinion/articles/2019-05-
10/republican-senate-can-t-be-bothered-to-vote-on-legislation [https://perma.cc/JJ7V-
BRZN]; Priyanka Boghani, How McConnell and the Senate Helped Trump Set Records in
Appointing Judges, FRONTLINE (May 21, 2019), https://www.pbs.org/wgbh/
frontline/article/how-mcconnell-and-the-senate-helped-trump-set-records-in-appointing-
judges/ [https://perma.cc/H633-QMDN].
286 CAPITAL UNIVERSITY LAW REVIEW [48:285
Several observers have noted that the Senate’s silence in the face of
egregious presidential statements and actions (including several ostensibly
impeachable offenses2 and unconstitutional actions3) is based primarily on
the goal of filling the federal courts with “conservative” judges and justices.4
This raises concerns about the blatant politicization of the federal bench and
its implications for the rule of law and the courts’ legitimacy. Another
striking feature of the current administration’s selection of judicial
appointees is their overall lack of diversity.5 The highly political and starkly
exclusionary approach to judicial selection is cause for deep concern.6 It
raises questions about how to establish a process of judicial selection and
2
See, e.g., ROBERT S. MUELLER, III, U.S. DEPT. OF JUSTICE, REPORT ON THE
INVESTIGATION INTO RUSSIAN INTERFERENCE IN THE 2016 PRESIDENTIAL ELECTION VOLUME I
OF II 7–8 (2019), https://www.justice.gov/storage/report.pdf [https://perma.cc/B4TFHAMF].
3
See, e.g., Jamal Greene, Trump as Constitutional Failure, 93 IND. L.J. 93, 95 (2018);
David Cole, Trump is Violating the Constitution, N.Y. REV. BOOKS (Feb. 23, 2017),
https://www.nybooks.com/articles/2017/02/23/donald-trump-is-violating-the-constitution/
[https://perma.cc/H4CF-GBTB].
4
See, e.g., Kevin Schaul & Kevin Uhrmacher, How Trump is Shifting the Most Important
Courts in the Country, WASH. POST (Sept. 4, 2018), https://www.washingtonpost.com/
graphics/2018/politics/trump-federal-judges/?utm_term=.6c6ee8c348fa
[https://perma.cc/5DAP-DB7P]; Lydia Wheeler, Meet the Powerful Group Behind Trump’s
Judicial Nominations, HILL (Nov. 16, 2017), https://thehill.com/regulation/court-
battles/360598-meet-the-powerful-group-behind-trumps-judicial-nominations
[https://perma.cc/VLX6-A3DA]; Elie Mystal, Donald Trump and the Plot to Take Over the
Courts, NATION (July 15, 2019), https://www.thenation.com/article/trump-mcconnel-court-
judges-plot/ [https://perma.cc/P9GQ-N5ZE].
5
See Stacy Hawkins, Trump’s Dangerous Judicial Legacy, 67 UCLA L. REV. DISC. 20,
23 (2019) (“For the first time in nearly three decades, the federal bench has actually become
appreciably less diverse, even as the nation has continued to experience rapid growth in its
demographic diversity.”); Catherine Lucey & Meghan Hoyer, Trump Choosing White Men
as Judges, Highest Rate in Decades, CHI. TRIB. (Nov. 13, 2017),
https://www.chicagotribune.com/nation-world/ct-trump-blacks-judges-20171113-story.html
[https://perma.cc/LLU7-RAQK].
6
See Kevin R. Johnson, How Political Ideology Undermines Racial and Gender
Diversity in Federal Judicial Selection: The Prospects for Judicial Diversity in the Trump
Years, 2017 WIS. L. REV. 345, 365 (2017).
2020] JUDICIAL SELECTION 287
appointment that will safeguard the judicial branch’s legitimacy7 and serve
justice and fairness.8
How do we best select judges who possess qualities that best serve the
delivery of justice and fairness? Significant scholarly and practical attention
has focused on debates about election versus appointment of judges,9
whether judges are primarily legal or political actors10, the influence of
campaign money on judicial independence,11 and the need for greater
inclusion on the bench of members of historically under-represented and
subordinated groups.12
7
See id. at 351–52 (“Diversity has generally been considered to increase the perceived
legitimacy of the judiciary in the eyes of the public. Put differently, an all-white judiciary in
most quarters will not be viewed as legitimate, just as an all-white jury deciding a case
involving an African-American criminal defendant is not viewed as legitimate. A diverse
judiciary reflecting a cross-section of the greater community, resembling the cross-section
from which petit juries must be selected, generally will be considered to be more legitimate
than a homogenous bench.”).
8
See, e.g., Lori A. Ringhand & Paul M. Collins, Jr., May it Please the Senate: An
Empirical Analysis of the Senate Judiciary Committee Hearings of Supreme Court Nominees,
1939–2009, 60 AM. U. L. REV. 589 (2011); James Andrew Wynn, Jr., Judicial Diversity:
Where Independence and Accountability Meet, 67 ALB. L. REV. 775 (2004).
9
See, e.g., Steven Zeidman, Careful What You Wish for: Tough Questions, Honest
Answers, and Innovative Approaches to Appointive Judicial Selection, 34 FORDHAM URB. L.J.
473, 475 (2007); Steven Zeidman, Judicial Politics: Making the Case for Merit Selection, 68
ALBANY L. REV. 713, 718–19 (2005); Steven P. Croley, The Majoritarian Difficulty: Elective
Judiciaries and the Rule of Law, 62 U. CHI. L. REV. 689, 692–93 (1995).
10
See, e.g., KEITH J. BYBEE, ALL JUDGES ARE POLITICAL—EXCEPT WHEN THEY ARE NOT:
ACCEPTABLE HYPOCRISIES AND THE RULE OF LAW 12 (Austin Sarat ed., 2010).
11
See, e.g., James Sample, Court Reform Enters the Post-Caperton Era, 58 DRAKE L.
REV. 787, 789–90 (2010) (discussing the importance of judicial recusal rules pending needed
changes in judicial selection); James Sample, Caperton: Correct Today, Compelling
Tomorrow, 60 SYRACUSE L. REV. 293, 303 (2010).
12
See, e.g., Carl Tobias, Diversity and the Federal Bench, 87 WASH. U. L. REV. 1197,
1203–04 (2010); Linda Maria Wayner, The Affirmatively Hispanic Judge: Modern
Opportunities for Increasing Hispanic Representation on the Federal Bench, 16 TEX.
WESLEYAN L. REV. 535, 546 (2010); Barbara L. Graham, Toward an Understanding of
Judicial Diversity in American Courts, 10 MICH. J. RACE & L. 153, 154–56 (2004); Sylvia R.
Lazos Vargas, Does a Diverse Judiciary Attain a Rule of Law That is Inclusive?:What Grutter
v. Bollinger Has to Say About Diversity on the Bench, 10 MICH. J. RACE & L. 101 (2004);
Sherrilyn Ifill, Racial Diversity on the Bench: Beyond Role Models and Public Confidence,
Improving the “diversity”13 of the bench often has been discussed as a

component of judicial selection and presented as a goal that nominally has
had the support of the mainstream legal community.14 President Jimmy
Carter made the first notable progress toward improving diversity on the
federal bench.15 The Obama Administration was applauded for making
strides in diversifying the federal bench.16 Some state and local court
systems also have made significant advances in diversity.17
Judicial selection methods that support fairness and impartiality are
particularly important at a time when there is significant evidence of bias
and animus on the part of the Executive.18 Today, there is deep concern that
57 WASH. & LEE L. REV. 405, 406–07 (2000) [hereinafter Ifill, Beyond Role Models];
Sherrilyn A. Ifill, Judging the Judges: Racial Diversity, Impartiality and Representation on
State Trial Courts, 39 B.C. L. Rev. 95 (1997) [hereinafter Ifill, Judging the Judges].
13
The word ‘diversity’ is complicated—it can serve as code for a wide variety of goals,
including racial, ethnic, gender, sexual orientation, religious, economic, educational,
geographic, political, or professional backgrounds. See, e.g., CASS R. SUNSTEIN ET AL., ARE
JUDGES POLITICAL? 138 (2006) (“Of course, the idea of diversity, or of a mix of perspectives,
is hardly self-defining. It would not make sense to say that the federal judiciary should
include people who refuse to obey the Constitution, or who will let the president do whatever
he wants, or who think that the Constitution allows suppression of political dissent or does
not forbid racial segregation. Here, as elsewhere, no one really wants diversity as such; the
domain of appropriate diversity is limited.”). This article focuses on racial, ethnic, gender,
and sexual orientation diversity because of their particular (though not exclusive)
longstanding salience with respect to issues of justice in the United States.
14
See, e.g., Public Forum: A Lasting Blueprint for Judicial Diversity (2006) (statement
of Hon. John R. Dunne, Vice Chair, Committee for Modern Courts),
https://moderncourts.org/programs-advocacy/judicial-diversity/ [https://perma.cc/6JSK-
KMHP].
15
See Jonathan K. Stubbs, A Demographic History of Federal Judicial Appointments by
Sex and Race: 1789–2016, 26 BERKELEY LA RAZA L.J. 92, 106 (2016).
16
See id. at 111–12.
17
See, Greg Goelzhauser, Diversifying State Supreme Courts, 45 L. & SOC’Y REV. 761,
769–76 (2011).
18
See, e.g., Christianna Silva, Trump’s Full List of ‘Racist’ Comments About Immigrants,
Muslims and Others, NEWSWEEK (Jan. 11, 2018), http://www.newsweek.com/trumps-full-
list-racist-comments-about-immigrants-muslims-and-others-779061 [https://perma.cc/8CQ7
-7JYB]; David Leonhardt & Ian Prasad Philbrick, Donald Trump’s Racism: The Definitive
List, Updated, N.Y. TIMES (Jan. 15, 2018), https://www.nytimes.com/
interactive/2018/01/15/opinion/leonhardt-trump-racist.html [https://perma.cc/5BH5-TCKN]
on the federal level, the goal of judicial diversity has been not only
abandoned, but reversed.19 “As of June 1, 2019, over 75% of federal judges
conﬁrmed under the Trump Administration are male and almost 90% are
white.”20 Even during the prior period when judicial diversity was
championed as a stated bi-partisan goal across the nation’s federal and state
(opinion piece recounting specific examples of Donald Trump’s racist statements and actions
over many years); S.M., Tainted with Anti-Islam Animus: Another Appeals Court Blocks
Travel Ban 3.0, ECONOMIST (Feb. 16, 2018), https://www.economist.com/
blogs/democracyinamerica/2018/02/tainted-anti-islam-animus [https://perma.cc/BSZ9-
A57J]; Josh Gerstein, Judge: Trump Racism May Have Been Key to Ending DACA, POLITICO
(Jan. 12, 2018), https://www.politico.com/story/2018/01/12/trump-racism-daca-dreamers-
judge-339512 [https://perma.cc/P9JW-TGW6]; Zachary Cohen, Trump Tweets About DACA
Amid “Shithole” Controversy, CNN POLITICS (Jan. 13, 2018), https://www.cnn.com/
2018/01/13/politics/trump-daca-tweet/index.html [https://perma.cc/77QS-NYND]; Tom
Embury-Dennis, UN Calls Donald Trump’s S***hole Immigrants Comments ‘Racist’,
INDEPENDENT (Jan. 12, 2018), https://www.independent.co.uk/news/world/americas/un-
donald-trump-shithole-immigrants-haiti-africa-racist-huamn-rights-united-nations-
a8155186.html [https://perma.cc/RM9Z-8L9N]; Richard Gonzales, States Sue To Block
DACA Termination, Citing Trump’s ‘Racial Animus’, NPR (Sept. 7, 2017),
https://www.npr.org/sections/thetwo-way/2017/09/07/549047054/states-sue-to-block-daca-
termination-citing-trumps-racial-animus [https://perma.cc/PXX9-7ZGM]; Michael D. Shear
& Maggie Haberman, Trump Defends Initial Remarks on Charlottesville; Again Blames
‘Both Sides’ (Aug. 15, 2017), https://www.nytimes.com/2017/08/15/us/politics/trump-press-
conference-charlottesville.html [https://perma.cc/WYP9-V54C]. Even the National Catholic
Reporter has noted that “[t]he Trump administration is the most anti-Latino” on record in the
U.S. Mario T. García, We’re Seeing the Most Anti-Latino Administration in US History,
NAT’L CATH. REP. (Feb. 14, 2018), https://www.ncronline.org/news/opinion/ncr-today/were-
seeing-most-anti-latino-administration-us-history [https://perma.cc/A3KJ-7YCR].
19
See, e.g., Hawkins, supra note 5; Alliance for Justice Judicial Selection Snapshot,
ALLIANCE FOR JUST. (April 25, 2018), https://www.afj.org/wp-content/uploads/2015/01/
Judicial_Selection_Snapshot.pdf [https://perma.cc/9MAU-HV4J] (87% of Trump’s
confirmed judicial nominee are White as of July 10, 2019). Also worrisome is the almost
exclusive reliance on the Federalist Society, an overwhelmingly white, male organization, for
judicial candidates. See Ben Protess & Rebecca R. Ruiz, Democrats Accuse Conservatives
of a ‘Dark Money’ Bid to Influence Judges, N.Y. TIMES (May 12, 2020),
https://www.nytimes.com/2020/05/12/us/federalist-society-judges.html [https://perma.cc/
BVC4-9PKK].
20
Building the Bench, ALLIANCE FOR JUST., https://afj.org/our-work/building-the-bench
[https://perma.cc/A8FC-R8SE] (last visited Oct. 8, 2019).
court systems, that goal remained stubbornly elusive.21 Improving judicial

diversity will require political change.22 But it will require more than that.
To improve diversity over the long run, socially embedded notions
associating impartiality with colorblindness (read “whiteness”) and diversity
with bias must be challenged and soundly debunked.23
This article begins with background about the state of judicial diversity
in federal and state courts and obstacles to improving diversity and
increasing inclusion. It will examine arguments made supporting and
opposing judicial diversity as a goal. Part II will explore common judicial
selection narratives that present diversity as contrary to impartiality and
fairness. It will connect some of these narratives to public perceptions of
the judge’s role—from a formalistic notion of judges as automatons or
umpires who exercise very little discretion in decision-making to competing
notions of judges as no more than politicians in robes. It will then briefly
explain the pervasiveness of legal ambiguity and why it requires judges to
21
See Standing Committee on Judicial Independence: National Database on Judicial
Diversity in State Courts, A.B.A., http://apps.americanbar.org/abanet/
jd/display/national.cfm#2 [https://perma.cc/9SP6-XFV3] (last visited Oct. 14, 2019) (noting
that African Americans comprise less than 9%, Latino/as less than 4% and Asian Americans
less than 2% of state court judges as of 2010).
22
Johnson, supra note 6, at 365.
23
See Nancy Scherer, Diversifying the Federal Bench: Is Universal Legitimacy for the
U.S. Justice System Possible?, 105 NW. U. L. REV. 587, 591 (2011). Scherer states:
Both parties want to maintain and enhance the legitimacy of the federal
courts through their respective appointment strategies (diversity versus
color-blind selection). The problem is that neither strategy in its current
form is capable of conferring universal legitimacy on the federal courts.
Research suggests that the Democrats' diversity strategy may raise
legitimacy levels according to minorities but decrease it according to
whites. At the same time, the Republicans’ color-blind approach
maintains the status quo for minorities and whites. Under this strategy,
whites continue to dominate the federal bench, leaving whites' levels of
legitimacy high and minorities' levels low. I refer to this conundrum as
the “paradox of diversity.”
Id. This article argues that the notion of colorblindness as aligned with legitimacy stems from
a misguided conception of impartiality favoring a white male “norm” as neutral by default,
rather than identifying it as having a point of view, and offers a different conception of
impartiality as involving inclusion and an open mind.
be much more than umpires and instead to exercise discretion, empathy, and
judgment within the law’s constraints. It will also note the importance of
the rule of law and norms of judging that require judges to be more than
mere politicians in robes.
Part III will relate these views to common theories of the judge’s role
that are based on transcendental notions of justice, fairness, and impartiality
and a social contract expressed in philosopher John Rawls’s “view from
nowhere.” This section will focus on Rawls’s articulation of this theory of
justice and explain how it has been erroneously used in narratives about
impartiality and neutrality as a rationale for resisting inclusion and diversity
in judicial selection and decision-making. While acknowledging the appeal
of Rawls’s theories of justice and fairness, this section will explain their
limitations and misapplication in the practice of improving justice.
It will discuss theories of justice that critique the transcendental
approach and support the view that the inclusion of persons representing
diverse views and experiences is and should be a key consideration in
improving justice. Drawing on the work of Amartya Sen, Iris Marion
Young, and others who address ideas of justice that take account of
difference, this article will connect the development of an idea of justice that
moves away from Rawls’s “view from nowhere” to Sen’s notion of the
possibility “of plural and competing reasons for justice, all of which have
claims to impartiality and which nevertheless differ from—and rival—each
other”24 as articulating strong theoretical support for a judicial diversity as a
central concern in the delivery of justice.
The goal is to make more explicit the theories of justice behind the
narratives that oppose consideration of diversity and to offer alternative
theories that explain why inclusion of diverse perspectives is important to
improving justice overall. This examination rejects (and does not discuss)
blatant bias, racism, and discrimination applied to judging and judicial
selection. Where such views are evident, they are disqualifying and have no
place in judicial selection or the justice system. Rather, the goal here is to
help uncover and address implicit notions that diversity is incompatible with
impartiality and to demonstrate that diversity and inclusion improve
fairness, empathy, and impartiality in judging.
In explicitly noting background theories at work in narratives seeking
pure impartiality, and highlighting competing theories that offer a different,
more inclusive, and more practical view of justice, a goal is to help change
the tenor of the debate around diversity in judicial selection and note its
importance to improving substantive justice (rather than just the appearance
24
AMARTYA SEN, THE IDEA OF JUSTICE 12 (2009).
of justice). It is also hoped that this effort contributes to the task of creating
a new, broader sense of how “we the people” are reflected in the third branch
of government.25
II. JUDICIAL DIVERSITY IN FEDERAL AND STATE COURTS
AND OBSTACLES TO PROGRESS
A. Diversity in Federal Judicial Selection—Slow Progress, Stark
Reversals
Diversity in United States federal courts is minimal and does not come
close to representing the United States demographics. Despite several years
of stated efforts by presidential administrations of both parties, progress has
been slow.26 The current administration not only has failed to make progress
in diversifying the federal bench, its efforts are moving in the opposite
direction.27
Although snapshots of the demographic profile of the
federal judges appointed by Trump vary slightly depending
on the timing, an independent analysis of Trump’s judicial
appointees from demographic data compiled by the Federal
Judicial Center suggests that of the eighty-three judges
confirmed in Trump’s first two years in office, only seven
are minorities and twenty are women (including two women
of color), making his appointees 92 percent white and 76
percent male.28
While the Trump administration’s retrenchment on judicial diversity is
alarming, it should be noted that diversity efforts over the last thirty years
have been slow and difficult. This is perhaps most evident at the Supreme
Court. “With just five [now six] exceptions, every member of the Supreme
25
See Kenji Yoshino, The New Equal Protection, 124 HARV. L. REV. 747, 754 (2011).
Indeed, in answer to Yoshino’s observation that celebrating diversity is insufficient to the
task, a focus on substantive inclusion of historically subordinated and marginalized groups
should be emphasized as the goal.
26
See Stubbs, supra note 15 at 106–10.
27
Demography of Article III Judges, 1789–2017, FED. JUD. CTR.,
https://www.fjc.gov/history/exhibits/graphs-and-maps/race-and-ethnicity
[https://perma.cc/V66V-5QZG] (last visited May 17, 2020).
28
Hawkins, supra note 5, at 30 (2019) (footnote omitted).
Court in the nation’s history has been a white male . . . .”29 But the trial and
intermediate appellate federal courts also fall short when it comes to
diversity.
According to the Federal Judicial Center, diversity
within the federal judiciary is minimal. Only 136 of the 597
active federal district judges are a member of a racial/ethnic
minority, roughly 22.8 percent. . . . More critically,
variables such as socioeconomic status, geographic region
of sitting judges, and life experiences may play a critical
role in how individuals understand cases that involve more
than simply applying the law to the facts.30
Pat Chew and Robert Kelly provide an even bleaker picture, noting that “the
federal judiciary remains predominantly White at 83% versus 17% minority
composition” and that “the cumulative 17% minority representation is not
proportional to the minorities in the general population, which is double at
approximately 34%.”31
The recent spate of federal judicial appointments by the Trump
administration has made matters notably worse. As Stacy Hawkins
observes:
Trump has appointed white men in numbers not seen in
nearly three decades, reversing a four-decade trend across
both Democratic and Republican administrations of
increasing the diversity of judges appointed to the federal
bench over time. Among Democratic presidents, the share
of white males appointed to the bench shrank from 66
percent during Carter's Administration, to 53 percent during
Clinton’s administration, and they represented a mere 36
percent of Obama's appointees to the bench. Republican
presidents have appointed more white males and fewer
diverse judges to the bench compared to Democratic
29
Adam Liptak, Stevens, the Only Protestant on the Supreme Court, N.Y. TIMES (Apr.
10, 2010), https://www.nytimes.com/2010/04/11/weekinreview/11liptak.html [https://
perma.cc/YSM6-4T6R].
30
Jill D. Weinberg & Laura Beth Nielsen, Examining Empathy: Discrimination,
Experience, and Judicial Decisionmaking, 85 S. CAL. L. REV. 313, 347–48 (2012).
31
Pat K. Chew & Robert E. Kelley, The Realism of Race in Judicial Decision Making:
An Empirical Analysis of Plaintiffs’ Race and Judges’ Race, 28 HARV. J. RACIAL & ETHNIC
JUST. 91, 92 (2012).
presidents. Until now, however, they too evidenced a trend

towards greater judicial diversity with the share of white
male judges appointed by Reagan at 86 percent, but falling
to 73 percent under Bush I and falling yet again under Bush
II to 67 percent. Trump has reversed this decade-long trend
by appointing approximately 70 percent white male judges
to the federal bench.32
The gender gap among judges is also remains disappointingly wide,
especially when compared with the fact that women now comprise almost
half of all law school graduates.33 “Statistics show that less than thirty
percent of judges in federal and state courts are women, including federal
district court judges (25%), federal appeals court judges (29%), and state
court judges (26%).”34 The significant gender imbalance on the federal
bench would require “successive presidential administrations to appoint
more women than men” to achieve a reasonable balance over time.35
B. State Judicial Diversity
Diversity in state courts is also lacking.36 This is of concern because
despite the importance of the United States Supreme Court and federal
courts on issues of federal law, “state courts handle more than 90%” of
United States judicial matters.37 Indeed, most Americans encounter the
judicial system through state courts.”38 A recent Brennan Center report
highlights the lack of diversity in state high courts. Among its findings:
• Twenty-four states currently have an all-white
supreme court bench, including eight states in
32
Hawkins, supra note 5, at 31 (footnotes omitted).
33
Ann C. Logue, Where Women Attorneys Get Ahead, BUS. WEEK (Mar. 19, 2008),
https://www.bloomberg.com/news/articles/2008-03-19/where-women-attorneys-get-
aheadbusinessweek-business-news-stock-market-and-financial-advice
[https://perma.cc/RE9M-TZ9G].
34
Justin D. Levinson & Danielle Young, Implicit Gender Bias in The Legal Profession:
An Empirical Study, 18 DUKE J. GENDER L. & POL'Y 1, 5 (2010) (footnotes omitted).
35
See Stubbs, supra note 15, at 127.
36
See TRACEY E. GEORGE & ALBERT H. YOON, THE GAVEL GAP: WHO SITS IN JUDGMENT
ON STATE COURTS? 3 [hereinafter GAVEL GAP Report] https://www.gavelgap.org/pdf/gavel-
gap-report.pdf [https://perma.cc/9N7C-P2AU].
37
Id.
38
Id.
which people of color are at least a quarter of the

state’s general population.
• Only 15 percent of state supreme court seats
nationwide are held by individuals who are Black,
Asian, Latino, or Native American—though nearly
40 percent of the nation’s population are people of
color. . . .
• More than a third of all states—18 in total—have
never seated a Black justice.
• Women hold only 36 percent of state supreme court
seats. Currently, 17 states have only one female
justice on their supreme court bench.39
The report notes that by some measures diversity efforts in state supreme
courts have lost ground from a generation ago.40 “The gap between the
proportion of people of color on the supreme court bench and their
representation in the U.S. population was [wider] in 2017 (the most current
year for which we have available population data) than it was over two
decades ago, in 1996.”41
As reported by the American Constitution Society, in 2016 diversity
across state courts for African Americans, Hispanics/Latinos, Asian
Americans and Native Americans combined was at less than 20% though
they represent more than 40% of the population across states.42 “Women
comprise roughly one-half of the U.S. population and one-half of American
law students,” but less than one-third of state judges.43 While there is
variation in selection methods, political makeup, and overall court
composition among the states, the broad and persistent lack of diversity is
of concern, particularly in light of stated support for improving diversity and
inclusion over the years.
39
LAILA ROBBINS, ALICIA BANNON & MALIA REDDICK, STATE SUPREME COURT
DIVERSITY: ACROSS THE COUNTRY, COURTS FAIL TO REFLECT THE RACIAL, ETHNIC, AND
GENDER DIVERSITY OF THE COMMUNITIES THEY SERVE 2 (2019),
https://www.brennancenter.org/sites/default/files/publications/2019_07_StateSupremeCourt
Diversity.pdf [https://perma.cc/5KF6-C2NC] (footnotes omitted).
40
Id.
41
Id.
42
See Gavel Gap Report, supra note 36, at 3.
43
Id. at 2.
C. The Judicial Diversity Dilemma—Why Is Such an Important Goal So

Hard to Achieve?
The confirmations of Justice Sonia Sotomayor, the first Latina and third
woman, and Justice Elena Kagan, the fourth woman and eighth person of
Jewish descent, to the United States Supreme Court brought broad national
attention to diversity on the bench—its importance, the arguments
supporting and opposing it, and the obstacles to achieving it.44 Many
politicians and members of the legal community have stated a commitment
to improving/increasing judicial diversity for a very long time.45
44
See, e.g., Arrie W. Davis, The Richness of Experience, Empathy, and the Role of a
Judge: The Senate Confirmation Hearings for Judge Sonia Sotomayor, 40 U. BALT. L. F. 1,
2–3 (2009) (noting various reactions to Judge Sototmayor’s reference to empathy in judging
and arguing in favor of judges with diverse experiences); Rosalind Dixon, Female Justices,
Feminism, and the Politics of Judicial Appointment: A Re-Examination, 21 YALE J. L. &
FEMINISM 297, 309–11 (2010); Theresa M. Beiner, White Male Heterosexist Norms in the
Confirmation Process, 32 WOMEN’S RTS. L. REP. 105, 106–07 (2011),
https://lawrepository.ualr.edu/cgi/viewcontent.cgi?article=1042&context=faculty_scholarsh
ip [https://perma.cc/EH89-NVJU].
45
See, e.g., ALFRED P. CARLTON, JR., JUSTICE IN JEOPARDY: REPORT OF THE AMERICAN
BAR ASSOCIATION ON THE 21ST CENTURY JUDICIARY 60 (2003),
https://www.americanbar.org/content/dam/aba/migrated/judind/jeopardy/pdf/report.pdf
[https://perma.cc/R2KL-H9QB] (“This Commission is convinced that increasing the
diversity of the judicial branch is more than an attractive goal for the twenty-first century
judiciary. It is a necessity.”); Azi Paybarah, Diaz, Monserrate, Echo Paterson on Judicial
Diversity, OBSERVER (Dec. 2, 2008), https://observer.com/2008/12/diaz-monserrate-echo-
paterson-on-judicial-diversity/ [https://perma.cc/AJ22-C9TJ]; Frank Argote-Freyre, A Plan
for New Jersey Supreme Court Without Diversity an Injustice, LATINO ACTION NETWORK
(May 3, 2011), http://latinoaction.blogspot.com/2011/05/plan-for-new-jersey-supreme-
court.html [https://perma.cc/PLF9-T7GH] (“New Jersey’s Supreme Court should represent
all of the people. This so-called deal would create a Supreme Court that makes important
decisions impacting communities of color — without any representation from any of those
communities . . . . It erases hard-fought victories by the Latino and African-American
communities to ensure representation on the Court. . . . With this move, New Jersey would
go to the bottom of the pack, along with notoriously racially divided states like Arizona, in
judicial diversity . . . .”).
Organizations from the American Bar Association46, to the Conference of

Chief Justices and National Center for State Courts,47 to the American
Judicature Society48 have issued statements of support for judicial diversity
as well as statements of concern about the lack of diversity on both the state
and federal benches. Yet after years of stated support for increasing judicial
diversity, progress remains disappointingly slow and has stagnated and is
even undergoing reversal.49 At all times, but especially when public
confidence in the ability of government leaders to act without bias or animus
is at an historic low, it is crucial that the selection of judges be done in a
manner that supports fairness, inclusivity, impartiality, and a commitment to
justice for all.
III. POLITICS, PERCEPTIONS OF THE JUDGE’S ROLE, AND THE EFFECTS
ON JUDICIAL DIVERSITY
The overall makeup of current federal judicial nominees as well as the
records of several individual nominees are cause for alarm.50 As of the
46
AM. BAR ASS’N, DIVERSITY IN THE LEGAL PROFESSION, THE NEXT STEPS 31–32 (2010),
https://www.americanbar.org/content/dam/aba/administrative/diversity/next_steps_2011.aut
hcheckdam.pdf [https://perma.cc/DW96-CZAQ].
47
CONFERENCE OF CHIEF JUSTICES, RESOLUTION 2 IN SUPPORT OF UPDATING THE
NATIONAL DATABASE ON JUDICIAL DIVERSITY IN STATE COURTS (Aug. 2, 2006),
https://ccj.ncsc.org/~/media/Microsites/Files/CCJ/Resolutions/08022006-Access-Justice-
Updating-National-Database-Judicial-Diversity-State-Courts.ashx [https://perma.cc/3PB4-
R9A3].
48
Daniel Padilla, ABA and Brennan Center Release New Manual on Judicial Diversity,
AM. JUDICATURE SOC’Y (Oct. 28 2017), http://americanjudicaturesociety.org/key-
issues/judicial-diversity/aba-and-brennan-center-release-new-manual-on-judicial-diversity/
[https://perma.cc/Y7EC-9W4Y].
49
See, Carl Tobias, Judge Thompson and the Appellate Court Confirmation Process, 91
B.U. L. REV. 727, 747 (2011) (while the Obama Administration had been relatively active in
supporting diversity among federal judges, problems with the confirmation process slowed
progress).
50
See, e.g., Hawkins, supra note 5; Tom Porter, Trump Is Rushing Through ‘Unqualified’
Judges Faster than any Other President, NEWSWEEK (Dec.12, 2018),
https://www.newsweek.com /trump-has-nominated-more-unqualified-judges-stage-any-
other-president-1255172 [https://perma.cc/6DYY-L52E] (demographics of Trump nominees
and comparison to others; examples of bias and lack of qualification of certain nominees);
Ana Valens, Trump’s Judicial Pick Under Fire for Racist, Homophobic Remarks, DAILY DOT
drafting of this article, federal judicial confirmations are taking place at

record pace despite concerns about homogeneity of overwhelming white,
male appointees holding a particular conservative ideology, as well as
serious concerns about evidence of bias and lack of baseline qualifications
among several nominees.51 Notwithstanding these developments and the
importance of positions on the federal bench, this process has received
relatively little coverage in a mainstream media52 aside from the highly
contentious confirmation process for then-Judge Brett Kavanaugh.
In addition to significant competition for public attention from a range
of developments in the current administration, the absence of strong and
persistent objections to the lack of diversity and inclusion in judicial
selection (and in executive appointments overall) may stem from a sense of
futility, given the administration’s blatant expressions of bigotry and bias.
It may also stem in part from broader a sense of fatigue surrounding
longstanding complaints about the lack of inclusion of people of color in
leadership positions, including the bench. Some have called this
(Mar. 21, 2018), https://www.dailydot.com/irl/trump-us-district-court-nominee-gay-

marriage/ [https://perma.cc/3V3P-MKJU].
51
Billy Corriher, Senate Confirms Record Number of Judges Despite Concerns About
Bias, CTR. FOR AM. PROGRESS (Dec. 14, 2017), https://www.americanprogress.org/
issues/courts/news/2017/12/14/444217/senate-confirms-record-number-judges-despite-
concerns-bias/ [https://perma.cc/TZ5M-VGB2].
52
This may be due in part to almost incessant coverage of turmoil regarding various
aspects of the presidency, ranging from significant turnover of high level staff in the White
House and at the Cabinet level, to reports regarding the investigation of foreign interference
in the 2016 election, to several allegations of sexual impropriety by the President and
attempted cover-ups. See, e.g., Susan Milligan, Trump’s Strategy: Distract, Divert, Repeat,
U.S. NEWS (Aug. 9, 2019), https://www.usnews.com/news/the-report/articles/2019-08-
09/president-trumps-distraction-strategy-could-be-fraying [https://perma.cc/4RBM-AEUF];
Tamara Keith, Turnover in Trump’s White House is ‘Record-Setting,’ and it Isn’t Even Close,
NPR (Jan. 19, 2018), https://www.npr.org/2018/01/19/578858897/turnover-in-trumps-white-
house-is-record-setting-and-it-isn-t-even-close [https://perma.cc/5E49-BGB2]. But see
Laura Litvan, McConnell, Eyeing Legacy, Turns Senate into Machine for Conservative
Judges, BLOOMBERG (Aug. 12, 2019), https://www.bloomberg.com/news/articles/2019-08-
12/-grand-slam-on-judges-contrasts-with-rough-patch-for-mcconnell
[https://perma.cc/6AUN-JQAB] (giving attention to the judicial appointment strategy).
phenomenon “racial exhaustion,”53 “pluralism anxiety,”54 a preference for

“colorblindness”55 or a “post-racial paradigm.”56 It describes a sense in
some quarters that affirmative efforts to include members of historically
under-represented and marginalized groups in positions of authority in law,
government, and business are viewed as passé, no longer necessary, and at
worst, discriminatory.57 The 2016 election revealed, sadly, that blatant
racism contributes to what had been considered subtler resistance.58 Indeed,
the current climate might be described as a backlash against efforts at
inclusion and diversity based on a sense of white resentment among some
that is being stoked for political purposes.59 Some observers also note the
problem of a public misperception that the judiciary and the society’s
leadership positions are more diverse than they actually are.60 Such
misperceptions, based on “visibility bias” can provoke a backlash among
whites anxious about displacement.61
Against this backdrop, the practice of judicial selection often meets with
palpable resistance to actively recruiting and appointing candidates of color.
Resistance also has been related to notions of implicit bias—negative
53
Darren Lenard Hutchinson, Racial Exhaustion, 86 WASH. U. L. REV. 917, 953–61
(2009).
54
Yoshino, supra note 25, at 748–51.
55
Helen Norton, The Supreme Court's Post-Racial Turn Towards a Zero-Sum
Understanding of Equality, 52 WM. & MARY L. REV. 197, 208–09 (2010); Mary Kathryn
Nagle, Parents Involved and the Myth of the Colorblind Constitution, 26 HARV. J. RACIAL &
ETHNIC JUST. 211, 212–17 (2010); Neil Gotanda, Failure of the Color-Blind Vision: Race,
Ethnicity, and the California Civil Rights Initiative, 23 HASTINGS CONST. L.Q. 1135, 1138–
49 (1996).
56
Neubia Williams, A Post Racial Era: How the Election of President Obama and Recent
Supreme Court Jurisprudence Illustrate that the United States is Not Beyond the Centrality
of Race, 4 S. REGION BLACK STUDENTS ASS’N L.J. 1, 3–20 (2010).
57
Norton, supra note 55, at 208–10.
58
Williams, supra note 56, at 3–20.
59
See David Simson, Whiteness as Innocence, 96 DENV. L. REV. 635, 694 (2019)
(“[W]hat entitles whites to feel abused is precisely the fact that current doctrine constructs
whites as innocent and as persistently treated unequally by race-conscious remediation. And
it is that fact that causes whites to resent both racial minorities and the institutions that
ostensibly ‘trammel’ the interests of whites on behalf of those minorities for imposing a cost
on whites that they would rather not bear.”).
60
Stubbs, supra note 15, at 113.
61
Id. at 113–14.
assumptions made about “outsider” candidates that prevent them from being
selected for the bench.62 To be sure, racism, sexism, homophobia and other
biases—whether explicit or implicit—do not answer all of the resistance to
inclusion and diversity in judicial selection. Some resistance has a basis in
interest group politics63 and political ideology more generally. But much of
the resistance takes a much subtler, almost subconscious form, including
implicit bias and a sense that people of color and others underrepresented in
the judiciary somehow lack the ability to be impartial decision makers.64
Under the current Presidential administration, the discourse about
judges has lurched from implicit bias and “dog whistles” often heard during
the course of political campaigns, to explicit expressions of bias and animus
against targeted groups, including Mexicans and Latinos, Muslims, women,
and members of the LGBT community, among others.65 President Trump’s
attacks on Judge Gonzalo Curiel offer striking examples of statements
demonstrating both implicit and explicit bias related to ideas about judges.66
As Kevin Johnson notes:
62
See CIARA TORRES-SPELLISCY, MONIQUE CHASE & EMMA GREENMAN, BRENNAN
CENTER FOR JUSTICE, IMPROVING JUDICIAL DIVERSITY 6, 11, 36 (2d ed. 2010),
https://www.brennancenter.org/sites/default/files/2019-08/Report_Improving-Judicial-
Diversity.pdf [https://perma.cc/L66H-QZHY].
63
Indeed, the Trump campaign not only exploited negative racial stereotyping and
explicit racial appeals, but also used promises to appoint conservative justices recommended
by the Federalist Society to mobilize certain groups of voters to support Donald Trump. See
Joel Achenbach, A look at the List Helping Trump Reshape the Supreme Court, WASH. POST
(July 8, 2018), https://www.chicagotribune.com/nation-world/ct-trump-supreme-court-list-
20180708-story.html [https://perma.cc/777X-YKAA]; Jason Zengerle, How the Trump
Administration is Remaking the Courts, N.Y. TIMES (Aug. 22, 2018),
https://www.nytimes.com/2018/08/22/magazine/trump-remaking-courts-judiciary.html
[https://perma.cc/5H7Z-WQCN].
64
See, e.g., Nina Totenberg, Trump Questions Neutrality of Muslim and Mexican-
American Judges, NPR (June 6, 2016), https://www.npr.org/2016/06/06/480905889/trump-
questions-neutrality-of-muslim-and-mexican-american-judges [https://perma.cc/GY3M-
GS64].
65
See Eugene Scott, Trump’s History of Making Offensive Comments About Nonwhite
Immigrants, WASH. POST (Jan. 11, 2018), https://www.washingtonpost.com/news/the-
fix/wp/2018/01/11/trumps-history-of-controversial-remarks-about-nonwhite-immigrants/
[https://perma.cc/W4VQ-NXYW].
66
Totenberg, supra note 64.
President Trump considers minority status to be a potential

source of bias in judicial decision-making. During his
presidential campaign, he vociferously attacked a federal
judge presiding over civil fraud lawsuits against Trump
University; he: “[S]aid that U.S. District Judge Gonzalo
Curiel had “an absolute conflict” in presiding over the
litigation given that he was “of Mexican heritage” and a
member of [a] Latino lawyer’s association. Mr. Trump said
the background of the judge, who was born in Indiana to
Mexican immigrants, was relevant because of his campaign
stance against illegal immigration and his pledge to seal the
southern U.S. border.”67
Such statements highlight a persistent trope that “outsider” judges are
somehow unable to judge cases impartially. The President’s bald and
erroneous assertion that Judge Curiel’s Mexican heritage rendered him
unable to be impartial goes to the heart of long held (if often unspoken)
opposition to diversity in judicial selection. That such an assertion is being
made by the President is alarming.68 However, the image of the white male
judge as the neutral default, together with the often-unspoken idea that
people from “other” backgrounds are somehow incapable of judging fairly
and impartially has, been a crucial obstacle to diversifying the bench.
IV. NARRATIVES ABOUT DIVERSITY, JUDGING, AND JUDICIAL
SELECTION
The idea that judges are supposed to be detached neutral and
independent arbiters of the law is deeply ingrained in United States law and
culture.69 Given its history and intuitive appeal, this ideal of pure judicial
67
Johnson, supra note 6, at 362 (footnotes omitted).
68
See Carl Tobias, President Donald Trump’s War on Federal Judicial Diversity, 54
WAKE FOREST L. REV. 531, 566 (2019) (“[Trump’s] actions can make federal judges and
courts appear more partisan and politicized and, thus, resemble the legislative and executive
branches. The initiatives may also undermine judicial independence, separation of powers,
checks and balances, the rule of law and democracy, make the judiciary appear beholden to,
or captured by, one party or another government branch, as well as continue, and even
accelerate, the selection process’ counterproductive decline. The dynamics identified could
undercut public respect for the judiciary, the President, the Senate, and the selection
process.”).
69
See 28 U.S.C. § 453 (2018). The statute provides:
neutrality and impartiality forms a foundation of much thinking about what

makes a good judge.70 The view is that so long as a judge has deep and
broad knowledge and understanding of the law, the temperament to handle
disputes fairly, efficiently and professionally, and the work ethic to review,
analyze, and decide cases and produce well-reasoned well written opinions,
the judge’s background should not matter.71 Nor should it matter whether
the composition of the bench reflects the population of litigants who come
before the court.72 This view is often presented as a core reason that diversity
is not seen as a particularly important value in judicial selection.73
At the same time, there has been increasing recognition across the
political spectrum that judges’ work involves much more than simply calling
balls and strikes.74 Indeed, observers ranging from conservatives like Justice
Antonin Scalia and Judge Richard Posner to critical race theorists agree that
the legal formalist view of judges as mechanistically applying static rules of
law fails accurately to describe the judge’s role.75 In fact, it has long been
recognized that the judge’s role involves both operating within the
constraints of constitutional, statutory, and precedential case law and
Each justice or judge of the United States shall take the following oath or
affirmation before performing the duties of his office: “I, _____ ______,
do solemnly swear (or affirm) that I will administer justice without
respect to persons, and do equal right to the poor and to the rich, and that
I will faithfully and impartially discharge and perform all the duties
incumbent upon me as _____ under the Constitution and laws of the
United States. So help me God.”
Id. See also GUIDE TO JUDICIARY POLICY, VOL. 2A CH. 2: CODE OF CONDUCT FOR UNITED
STATES JUDGES 5 (2014), http://www.uscourts.gov/Viewer.aspx?doc=/uscourts/
RulesAndPolicies/conduct/Vol02A-Ch02.pdf [https://perma.cc/X7N6-2BN6] [hereinafter
CODE OF CONDUCT] (Canon 3 states: “A Judge Should Perform the Duties of the Office Fairly,
Impartially and Diligently”).
70
CODE OF CONDUCT, supra note 69, at 5.
71
See id.
72
See Nelson Lund, Two Faces of Judicial Restraint (Or Are There More?) in McDonald
v. City of Chicago, 63 U. FLA. L. REV. 487, 488 (2011).
73
Johnson, supra note 6, at 346–47.
74
See, e.g., Kim McLane Wardlaw, Umpires, Empathy, and Activism: Lessons From
Judge Cardozo, 85 NOTRE DAME L. REV. 1629, 1633 (2010).
75
Id.
drawing on experience in deciding matters that require judgment or

discretion.76 Indeed, as noted supra even a cursory examination of the kinds
of determinations judges regularly are required to make exemplifies the
degree to which discretion and experience are central components of judicial
decision-making.77
When one considers the true nature of a judge’s work in reviewing facts
and applying law fairly and legitimately, the stubborn ideal of pure neutrality
and impartiality while perhaps an appealing theoretical aspiration, clashes
with reality.78 When combined with the recognition that justice and fairness
also require the fair and equal treatment of all persons, the exclusion of entire
classes of persons (particularly members of groups most marginalized in
society) from important decision-making functions must be seen as contrary
to justice. The tension between ideal notions of judicial impartiality and the
practical experience of the delivery of justice has spawned several (often
contradictory) narratives about the meaning and importance of diversity and
the role of the judge in deciding cases fairly and in a manner that is viewed
as legitimate.79 These narratives are heard in the context of judicial selection
contests, in court decisions, in the legal academy, and in the legal community
and broader society.80 They offer glimpses of the various deep structural
frameworks behind often inconsistent and competing views about justice,
fairness, equality, inclusion, and diversity.
A. Narratives About Diversity in Judicial Selection
The historic nature of the nomination and confirmation of Justice Sonia
Sotomayor to serve on the United States Supreme Court provided examples
of narratives about judicial diversity81 based on deeply embedded and often
contradictory notions of justice and societal difference.82 Because Justice
Sotomayor brought a background that had been absent from the Supreme
Court bench since its founding, her nomination demonstrated quite clearly
76
Id. See also Sarah M. R. Cravens, Judging Discretion: Contexts for Understanding the
Role of Judgment, 64 U. MIAMI L. REV. 947, 966–67 (2010).
77
Wardlaw, supra note 74, at 1633.
78
Id. at 1635.
79
Cravens, supra note 76, at 954.
80
Id.
81
I use “diversity” here because the language of diversity is used in judicial selection and
is related to the difficulty in focusing the conversation about judicial selection on the need to
prioritize the inclusion of people from traditionally excluded and subordinated backgrounds.
82
Davis, supra note 44, at 3–4.
the value of diversity and inclusion to judicial decision-making. At the same

time, her nomination elicited deep resistance in several quarters to her
inclusion on the bench because of her background and experience.83 On one
hand, the story of her journey from public housing projects in the Bronx, to
Yale law school, then to the federal bench, was lauded as a tale of
opportunity, hard work, and the achievement of the American dream.84
83
Senator Jeff Sessions’ statements during Justice Sotomayor’s confirmation hearings
provide a good example of this resistance:
I will not vote for—and no Senator should vote for—an individual

nominated by any President who believes it is acceptable for a judge to
allow their personal background, gender, prejudices, or sympathies to
sway their decision in favor of, or against, parties before the court. In my
view, such a philosophy is disqualifying.
Such an approach to judging means that the umpire calling the game
is not neutral, but instead feels empowered to favor one team over the
other.
Call it empathy, call it prejudice, or call it sympathy, but whatever it
is, it is not law. In truth, it is more akin to politics, and politics has no
place in the courtroom.
Some will respond, “Judge Sotomayor would never say it’s
acceptable for a judge to display prejudice in a case.” But I regret to say,
Judge, that some of your statements that I will outline seem to say that
clearly. Let’s look at just a few examples.
We have seen the video of the Duke University panel where Judge
Sotomayor says “It is [the] Court of Appeals where policy is made. And
I know, and I know, that this is on tape, and I should never say that, and
should not think that.”
And during a speech 15 years ago, Judge Sotomayor said, “I willingly
accept that we who judge must not deny the differences resulting from
experience and heritage but attempt . . . continuously to judge when
those opinions, sympathies, and prejudices are appropriate.”
Confirmation Hearing on the Nomination of Hon. Sonia Sotomayor, to be an Associate

Justice of the Supreme Court of the United States Before the S. Comm. on the Judiciary, 111th
Cong. 7 (2009) (statement of Jeff Sessions, A U.S. Senator from Alabama, Ranking Member,
Committee on the Judiciary), https://www.govinfo.gov/content/pkg/GPO-CHRG-
SOTOMAYOR/pdf/GPO-CHRG-SOTOMAYOR.pdf [https://perma.cc/5SFG-8XJG].
84
Current Members, SUP. CT. U.S., https://www.supremecourt.gov/
about/biographies.aspx [https://perma.cc/NR99-GGM4] (last visited Oct. 12, 2019).
Several Senators noted how proud we all should be as Americans of Justice

Sotomayor’s story.85 On the other hand, the mention of the relevance of
Justice Sotomayor’s background to the process of judicial decision-making
drew fire.86
References to a capacity for empathy as an important quality in judges
drew particular fire.87 President Obama had stated that empathy was among
the qualities he sought in judicial candidates.88 By empathy, he meant “an
intellectual and ethical process: the ability to think about the law from more
than one perspective.”89 When Obama nominated then-Judge Sotomayor, a
great deal of attention focused on past statements she had made about the
value her experience added to the process of judging.90 In particular, her
statement that a “wise Latina woman with the richness of her experiences
would more often than not reach a better conclusion than a white male who
hasn’t lived that life” drew intense scrutiny, including vicious criticism.91
Yet, as Andrea McArdle notes, empathy, understood as a “complex
phenomenon, encompassing both one’s emotional identification with
another and a cognitive capacity to see a situation as another would,” is a
vitally important quality in judging.92 Nonetheless, “[f]or Judge
Sotomayor’s interlocutors, drawing on one’s particularity (of background
and social identity) raised concerns about bias and thus about the nominee’s
qualification to serve.”93 The controversy was so intense that during the
85
Davis, supra note 44, at 2.
86
Id. at 5–6.
87
See Andrea McArdle, Using a Narrative Lens to Understand Empathy and How it
Matters in Judging, 9 LEGAL COMM. & RHETORIC: JALWD 173, 173–74 (2012).
88
Id.
89
Dahlia Lithwick, Once More, Without Feeling: The GOP’s Misguided and Confused
Campaign Against Judicial Empathy, SLATE (May 11, 2009),
http://www.slate.com/articles/news_and_politics/jurisprudence/2009/05/once_more_withou
t_feeling.html [https://perma.cc/9M7W-S9ZY].
90
Linda Martín Alcoff, Sotomayor’s Reasoning, 48 S. J. PHIL. 122, 123 (2010).
91
See id. at 123–24 (noting that for these remarks “Sonia Sotomayor was vilified from
coast to coast, called an anti-American racist, a reverse racist, a brown bigot, a member of an
organization that was equivalent to the Ku Klux Klan, and someone who believed in ‘identity
justice.’”).
92
McArdle, supra note 87, at 176.
93
Id.
confirmation hearing, Sotomayor emphasized “fidelity to the law” moving

away from any discussion of empathy or experience.94
While there was no evidence that Justice Sotomayor had decided any
matter unfairly or outside the bounds of the law, the fact that she included
reference to her background and experience as important to the task of fair
judging was treated in some quarters as antithetical to the role of the judge,
particularly as related to notions of pure impartiality.95 During the
94
Alcoff, supra note 90, at 124.
95
Interestingly, similar statements were made by Justice Samuel Alito and others without
comment or challenge. For example, Justice Alito stated during his confirmation hearing,
I am who I am in the first place because of my parents and because

of the things that they taught me, and I know from my own experience as
a parent that parents probably teach most powerfully not through their
words but through their deeds. And my parents taught me through the
stories of their lives, and I don’t take any credit for the things that they
did or the things that they experienced. But they made a great impression
on me. . . .
I got here in part because of the community in which I grew up. . . .
I am here in part because of my experiences as a lawyer. I had the
good fortune to begin my legal career as a law clerk for a judge who
really epitomized open-mindedness and fairness. He read the record in
detail in every single case that came before me. He insisted on
scrupulously following precedents, both the precedents of the Supreme
Court and the decisions of his own court, the Third Circuit. He taught all
of his law clerks that every case has to be decided on an individual basis,
and he really didn’t have much use for any grand theories. . . .
I have been shaped by the experiences of the people who are closest
to me, by the things I have learned from Martha; by my hopes and my
concerns for my children, Phillip and Laura; by the experiences of
members of my family, who are getting older; by my sister’s experiences
as a trial lawyer in a profession that has traditionally been dominated by
men.
Confirmation Hearing on the Nomination of Samuel A. Alito, Jr. to be an Associate Justice

of the Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary,
109th Cong. 54–56 (2006) (statement of Samuel A. Alito, Jr., of New Jersey, Nominee to be
an Associate Justice of the Supreme Court of the United States),
https://www.govinfo.gov/content/pkg/CHRG-109shrg25429/pdf/CHRG-109shrg25429.pdf
[https://perma.cc/8S77-CH4E].
confirmation process, questions repeatedly were raised about whether

Sotomayor’s comments about her background and experience rendering her
a “wise Latina” made her somehow incapable of fair decision-making on the
merits.96 As scholars who have examined the dynamics of the Supreme
Court confirmation process note:
The data indicate that Sotomayor received a higher
percentage of judicial philosophy questions than the
average for all other categories [of] nominees to the Court—
white, minority, male, and white female. Overall, 19% of
the questions asked of Sotomayor involved grilling her on
matters pertaining to her judicial philosophy . . . . These
included questions related to whether it was appropriate for
judges to exhibit “empathy” when deciding cases and those
relating to Sotomayor's ability to be impartial in light of her
comment regarding “wise Latinas” . . . .97
The reaction equating Sotomayor’s claims that identity, experience, and
empathy matter in judging with disqualifying bias, calls to mind Alcoff’s
observation that
for many whites, only white candidates are trustworthy
representatives of the general public, whereas nonwhite
candidates are suspected of speaking for only a particular
group. Just as intelligence and courage are often
differentially attributed across group identities, so is the
capacity to represent the universal. This indicates an
assumed correlation between identities and representational
capacity.98
The stark difference in Sotomayor’s cultural background99 from that of
any other Supreme Court Justice, should have called into question the effect
96
Christina L. Boyd et al., The Role of Nominee Gender and Race at U.S. Supreme Court
Confirmation Hearings, 52 LAW & SOC'Y REV. 871, 893 (2018).
97
Id. at 892–93.
98
Alcoff, supra note 90, at 125.
99
Notwithstanding Sotomayor’s hardscrabble background, it is important to note the
similarities in her professional background to other nominees that made Sotomayor
“acceptable” as a Supreme Court candidate – her “Ivy League” education, service in
respectable law firm and government jobs and on the federal bench. See Office of the Press
Secretary, Background on Judge Sonia Sotomayor, WHITE HOUSE (May 26, 2009),
on fairness of the almost exclusively white, male make-up of the Supreme

Court bench since 1789.100 Instead, many comments focused on whether
Sotomayor’s “otherness” or “difference” negatively affected her capacity for
fairness.101 Sotomayor’s candor102 about the impact and importance of her
background to the way that she thinks about judging drew criticism of her
ability to be impartial.103 Her cultural background should have been viewed
as an asset to improving fairness and justice on the Court by adding an
important and otherwise absent perspective to the process of judging that
enhances open mindedness and impartiality.
The nomination and confirmation process for Justice Elena Kagan
brought out different but also troubling narratives questioning her
“otherness.”104 Kagan, as a white woman, perhaps more firmly ensconced
in the elite quarters of Harvard and the federal government, did not face as
high a hurdle as Sotomayor on questions of qualification.105 However, the
public discourse around her nomination included concerns about her status
https://obamawhitehouse.archives.gov/the-press-office/background-judge-sonia-sotomayor
[https://perma.cc/BE6W-DXKR]. Sotomayor’s “acceptance” in these elite quarters preceded
her acceptability as a Supreme Court nominee. The fact that Sotomayor’s eligibility for the
bench was based on her ability to carve a path that is quite rare for people coming from a
similar socioeconomic background demonstrates the distance still yet to go in creating and
sustaining a truly inclusive judiciary and society.
100
SUSAN NAVARRO SMELCER, CONG. RESEARCH SERV., SUPREME COURT JUSTICES:
DEMOGRAPHIC CHARACTERISTICS, PROFESSIONAL EXPERIENCE, AND LEGAL EDUCATION,
1789–2010 6–8 (2010), https://fas.org/sgp/crs/misc/R40802.pdf [https://perma.cc/T8C9-
G8U2].
101
See McArdle, supra note 87, at 177.
102
Of course, it is necessary to keep in mind the degree to which the confirmation process
is carefully orchestrated to reveal as little as possible about nominees’ views. See, e.g., Erwin
Chemerinsky, Seeing the Emperor’s Clothes: Recognizing the Reality of Constitutional
Decision Making, 86 B.U. L. REV. 1069, 1070 (2006).
103
See Alcoff, supra note 90, at 124.
104
Betsy Wade, The Marriage Thing, WOMEN’S MEDIA CTR. (May 14, 2010),
http://www.womensmediacenter.com/news-features/the-marriage-thing
[https://perma.cc/S6BM-QHD8].
105
Indeed, there was some commentary on how easily Kagan was given a “pass” having
never served as a judge and having limited practice experience. See, e.g., Paul Campos, The
Next Harriet Miers?, DAILY BEAST (July 14, 2017), http://www.thedailybeast.com/blogs-
and-stories/2010-05-01/the-next-harriet-miers [https://perma.cc/9N2D-Q73N].
as a single woman and speculation about her sexuality.106 To the extent these
issues of “otherness” were raised, they were mostly presented as somehow
problematic rather than as possibly adding a valuable and missing
perspective.107
The discussions about diversity that emerged during the nomination and
confirmation processes for Justices Sotomayor and Kagan echo broader
narratives about diversity in federal and state judicial selection. In the
intense public discourse about Judge Sotomayor, it was deeply disappointing
yet informative to hear opponents of her nomination treat Sotomayor’s
diversity and the value it adds as somehow contrary to quality, fairness, and
impartiality.108 Justice Sotomayor was questioned closely about the effect
of her life experiences on her judging and on how she “sees” the facts.109
She also was questioned closely about her “temperament” because she is a
tough judge and asks tough questions.110 No observation was made by
Senator Sessions of the gendered nature of his critique—the fact that women
who are assertive advocates or judges are regularly characterized more
harshly than men in the same position.111
The confirmation of Clarence Thomas presented a counterpoint to the
usual shortcuts used in discussing diversity and inclusion of views from the
106
Julia Baird, Why We’re Talking about Elena Kagan’s Sexuality, NEWSWEEK (May 11,
2010), https://www.newsweek.com/why-were-talking-about-elena-kagans-sexuality-72409
[https://perma.cc/2KBD-KKQ9]; Michael Sheridan, Elena Kagan is Not Gay, Supreme Court
Nominee Just Hasn’t Found ‘Mr. Right’: Harvard Friends, N.Y. DAILY NEWS (May 12,
2010), https://www.nydailynews.com/news/politics/elena-kagan-not-gay-supreme-court-
nominee-hasn-found-mr-harvard-friends-article-1.445121 [https://perma.cc/32HB-6K6N].
107
See, e.g., Devin Dwyer, Kagan and the ‘Gay Question’ Controversy, ABC NEWS (May
13, 2010), https://abcnews.go.com/Politics/Supreme_Court/elena-kagan-supreme-court-
nominee-subject-rumors-sexuality/story?id=10634611 [https://perma.cc/EC5A-7C3D].
108
See Padilla, supra note 48.
109
Pema Levy, In Sotomayor Hearings, Jeff Sessions was Fixated on Discrimination
Against White People, MOTHER JONES (Nov. 28, 2016),
https://www.motherjones.com/politics/2016/11/time-jeff-sessions-questioned-sonia-
sotomayor-about-race/ [https://perma.cc/52ED-KVFD].
110
Jo Becker & Adam Liptak, Sotomayor’s Blunt Style Raises Issue of Temperament,
N.Y. TIMES (May 28, 2009), https://www.nytimes.com/2009/05/29/us/politics/29judge.html
[https://perma.cc/LQ58-YR7G] (noting that statements about Sotomayor’s temperament
were not seen about other judges on the Second Circuit).
111
Id. See also Levinson & Young, supra note 34, at 11. Nor was the Senator’s failure
to acknowledge this reality observed as a failure of fairness on his part.
margins. Thomas, a black man, represented an ideological view opposite of

that deemed generally aligned with the interests of African Americans in the
United States.112 This caused him to be challenged by some about his
qualifications and judicial philosophy with a focus on his ideology.113
Thomas was presented as adding “diversity” to the Supreme Court, which
he did, but only in a superficial way.114 Thomas, a person from an
underrepresented group, was understood to hold positions most often
ascribed to members of the white majority.115 This was viewed by some as
a cynical take on the need for inclusion because Thomas was seen as not
representing the views or position of any historically marginalized group.116
Thomas’s confirmation hearings drew in a range of questions including his
qualifications, serious allegations of past sexual harassment, and the
incongruity of his political philosophy with the views of most people who
share his background.117 Behind the significant questions regarding
Thomas’s nomination was the persistent skepticism about the role of race
and what it would and would not add to the task of judging.118 Indeed,
Thomas’s confirmation hearings added to broader skepticism about the
necessity of considering race in judicial selection.
By contrast, the more recent confirmations of Justices Gorsuch and
Kavanaugh did not bring up questions about their background or experiences
112
See Ifill, Beyond Role Models, supra note 12, at 482.
113
Id.
114
Id. at 483.
115
Id. at 482.
116
Id. at 416 (characterizing the nomination of Clarence Thomas “as exemplary of the
consequences of our failure to look beyond the ‘racial face’ of judges to satisfy diversity”).
117
See Roxanne Roberts, ‘It Was Just Awful’: The Clarence Thomas Hearings, in the
Words of Those Who Were There, WASH. POST (Apr. 9, 2016),
https://www.washingtonpost.com/lifestyle/style/it-was-just-awful-the-clarence-thomas-
hearings-in-the-words-of-those-who-were-there/2016/04/07/662eda1a-f120-11e5-85a6-
2132cf446d0a_story.html [https://perma.cc/L823-YHUE].
118
See Jodi Kantor & David Gonzalez, For Sotomayor and Thomas, Paths Diverge at
Race, N.Y. TIMES (June 6, 2009), http://www.nytimes.com/2009/06/07/
us/politics/07affirm.html?pagewanted=1 [https://perma.cc/PD8V-XKQJ]; Kai Wright,
Clarence Thomas’ Race Problem, AM. PROSPECT (Oct. 4, 2007),
https://prospect.org/article/clarence-thomas-race-problem/ [https://perma.cc/82MS-2U5X]
(noting Thomas’ conflicting views on race).
in the same ways; rather, the focus of the inquiry was on politics.119
Following the Senate’s refusal to even have a hearing on President Obama’s
appointment of Judge Merrick Garland to the Supreme Court, Justice
Gorsuch’s seat was viewed as the result of a blatant, calculated, partisan
political maneuver.120 The focus of Gorsuch’s confirmation hearing was on
partisan politics, including his selection by the Federalist Society.121 Little
was said about Gorsuch’s ability to be impartial based on his racial or ethnic
background or experiences.122
The fiery confirmation hearings for Justice Brett Kavanaugh largely
focused on allegations that he had committed sexual assault in high
school.123 Kavanaugh’s appointment also bore stark political overtones.124
His statement in response to the sexual assault allegations was that he was
subject to a “political hit” by Democrats, and that “what goes around comes
around” raised serious questions about bias against Democrats and his
119
See Matt Flegenheimer, Carl Hulse, Charlie Savage & Adam Liptak, Six Highlights
From the Gorsuch Confirmation Hearing, N.Y. TIMES (Mar. 20, 2017),
https://www.nytimes.com/2017/03/20/us/politics/judge-gorsuch-supreme-court-
confirmation-hearings.html [https://perma.cc/LV49-TTGE]; Joanna Walters, Brett
Kavanaugh Confirmation Hearings: Key Moments, GUARDIAN (Sept. 7, 2018),
https://www.theguardian.com/us-news/2018/sep/07/brett-kavanaugh-confirmation-hearings-
key-moments [https://perma.cc/CU3A-7PWC].
120
Joseph P. Williams, Garland Looms Over Gorsuch Confirmation Hearing, U.S. NEWS
& WORLD REP. (Mar. 20, 2017), https://www.usnews.com/news/politics/articles/2017-03-
20/merrick-garland-looms-over-neil-gorsuch-confirmation-hearing [https://perma.cc/K9RT-
297D].
121
See Flegenheimer, Hulse, Savage & Liptak, supra note 119.
122
See Confirmation Hearing on the Nomination of Hon. Neil M. Gorsuch to be an
Associate Justice of the Supreme Court of the United States Before the S. Comm. on the
Judiciary, 115th Cong. (2017), https://www.govinfo.gov/content/pkg/CHRG-
115shrg28638/pdf/CHRG-115shrg28638.pdf [https://perma.cc/LGJ6-TEHL].
123
See Niraj Chokshi & Julia Jacobs, Brett Kavanaugh: The News on the Accusations,
the Hearing and More, N.Y. TIMES (Sept. 26, 2018), https://www.nytimes.com/
2018/09/26/us/politics/kavanaugh-news.html [https://perma.cc/5HSR-GJ3T].
124
See, e.g., Brett Kavanaugh’s Attack on Democrats Could Pose Risk to Supreme Court,
CBS NEWS (Sept. 29, 2018), https://www.cbsnews.com/news/brett-kavanaugh-attack-on-
democrats-poses-risk-to-supreme-court/ [https://perma.cc/6Y27-65WV].
ability to be impartial on the bench.125 Nonetheless, few if any questions

were raised about Kavanaugh’s ability to be impartial based on his
background or experiences.126 Even Kavanaugh’s clear statements
indicating political bias did not disqualify him.127
Difficult and conflicting narratives about qualifications and questions
about impartiality that are raised when “outsider” candidates are introduced
are not limited to the Supreme Court confirmation process.128 These
125
Id.; Brett Kavanaugh’s Opening Statement: Full Transcript, N.Y. TIMES (Sept. 26,
2018), https://www.nytimes.com/2018/09/26/us/politics/read-brett-kavanaughs-complete-
opening-statement.html [https://perma.cc/EEE8-PJMJ].
126
CBS NEWS, supra note 124.
127
See N.Y. TIMES, supra note 125. For example, the following Kavanaugh statement
evidences what many view as disqualifying political bias:
This whole two-week effort has been a calculated and orchestrated

political hit, fueled with apparent pent-up anger about President Trump
and the 2016 election, fear that has been unfairly stoked about my judicial
record, revenge on behalf of the Clintons and millions of dollars in money
from outside left-wing opposition groups.
This is a circus. The consequences will extend long past my
nomination. The consequences will be with us for decades. This
grotesque and coordinated character assassination will dissuade
confident and good people of all political persuasions from serving our
country. And as we all know in the United States political system of the
early 2000s, what goes around comes around.
Id. While partisan politics has long been part of judicial selection, such blatant assertions of
partisan “payback” raise serious questions about the fairness and legitimacy of court
decisions. Yet, Kavanaugh’s ability to be impartial was not called into question in the ways
that candidates of color and women candidates have been.
128
See Ifill, Beyond Role Models, supra note 12, at 457. I focus here on narratives about
diversity in the Supreme Court confirmation process for women and candidates of color
because of the very public nature of Supreme Court confirmations and because of how starkly
the confirmation process tends to present the clash between notions of neutral and impartial
judges and interests in a fair and representative bench. Of course, in this confirmation process
as in all judicial selection, questions of background, experience and disposition are bound up
with issues of political ideology and its impact on the process of judging. Indeed, questions
of ideology and judicial philosophy seem always at play in the judicial selection process. But
when it comes to candidates considered to be “other” than the default white male norm, the
narratives appear in response to diversity efforts in federal and state court

judicial selection and though entangled with the range of political and
ideological battles, often involve a particular dynamic of skepticism around
race, ethnicity, and gender.129 Often this skepticism is related to concerns
about the capacity for impartiality given a background that is considered
different from the judicial “norm.”130
Of course, a range of forces are often at play in the consideration of
judicial candidates, including political and ideological considerations,
reputation in the legal community and with members of screening
committees, credentials and experience, quality of the interview and the
materials submitted, etc. It must be noted that the current climate in federal
judicial nominations favors not only white male candidates, it is also
blatantly partisan. Under normal circumstances, it can be difficult to identify
the reason why highly qualified nontraditional candidates might not advance
through the process. Given the range of variables at play, it is particularly
important to identify and eliminate structural double standards that are based
on unacknowledged and perhaps unconscious scrutiny of and skepticism
about candidates deemed to be outside the judicial norm. This is essential if
the goal of increasing diversity on the bench as a way to improve the delivery
of justice is to be realized. Part of the task, it seems, is to engage a practical
understanding of the judge’s role, including the need to address legal
ambiguity, to exercise discretion, and to draw upon experience.
B. Legal Ambiguity, Judicial Discretion, and Judges as More than
Umpires
As noted above, a prominent argument against the need for diversity and
inclusion on the bench comes from a notion of the judge’s role as that of an
“umpire,” a neutral arbiter of legal disputes whose job is analogous to simply
“call[ing] balls and strikes . . . .”131 On this view, personal background and
issues of race, ethnicity, gender, and class and their relationship to notions of impartiality and
fairness play a particular role that deserves attention from the perspective of justice.
129
See supra notes 44, 84–91, and accompanying text.
130
See Ifill, Beyond Role Models, supra note 12, at 457 (“Judges who bring outsider
perspectives to the bench are encouraged to believe that judges do and indeed must “strip
down like a runner” in order to execute faithfully the judicial oath.”).
131
See Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be Chief
Justice of the United States Before the S. Comm. on the Judiciary, 109th Cong. 55–56 (2005),
https://www.govinfo.gov/content/pkg/GPO-CHRG-ROBERTS/pdf/GPO-CHRG-
ROBERTS.pdf [https://perma.cc/U5L2-9ZW6]. There has been much discussion and some
experience should not matter. The judge’s job is simply to apply the law as
it is written with no room for influence by background, experience, or
perspective.132 Yet this view of the judges’ role is very much contested (and
I daresay, fairly soundly refuted).133 While “hot button” issues tend to come
to mind in federal judicial selection as matters involving judicial discretion,
even “ordinary” cases call for significant judicial discretion and the exercise
of value judgments. An examination of just a sampling of the kinds of
matters judges regularly decide reveals numerous longstanding and current
examples of legal ambiguity requiring judicial discretion.134 Various legal
questions require judgment calls based on human experience and an
understanding of the structure of law and society.135 While most areas of
judicial discretion are fairly well bounded by procedural and substantive law
and by expectations of the judge’s role, there is a great deal that is left to the
judge in reaching a fair and just result.136 Such judgments benefit from
criticism of Chief Justice Roberts’ “umpire” analogy. Much of that critique focuses on the
idea that judges are not “automatons.” Seattle Times Staff, Umpire or Automaton?, SEATTLE
TIMES (Sept. 23, 2005), https://www.seattletimes.com/opinion/umpire-or-automaton/
[https://perma.cc/MRA9-QDJL]. Even if one accepts the “umpire” analogy, one should not
take the position that all decisions are clear cut – judges often exercise discretion, and with
that, must bring their own experience and sensibilities to judging. It should be noted that
Roberts also said:
Judges are not politicians who can promise to do certain things in

exchange for votes. I have no agenda, but I do have a commitment. If I
am confirmed, I will confront every case with an open mind. I will fully
and fairly analyze the legal arguments that are presented. I will be open
to the considered views of my colleagues on the bench, and I will decide
every case based on the record, according to the rule of law, without fear
or favor, to the best of my ability, and I will remember that it’s my job to
call balls and strikes, and not to pitch or bat.
Roberts Confirmation Hearing, supra, at 56. There is much in that statement about which
people across the political spectrum can agree about the judge’s role. The concern is that the
“umpire” analogy presents an overly constricted view of the degree of discretion judges
exercise on a regular basis.
132
Id.
133
See Ifill, Beyond Role Models, supra note 12, at 455.
134
Cravens, supra note 76, at 949.
135
Id. at 948.
136
Id. at 973.
inclusion of various perspectives as part of the project of improving justice

and fairness.
For example, judges exercise significant discretion in matters of
equity.137 Traditionally, providing little in the way of hard and fast rules,
cases in equity require judges to exercise judgment and discretion. As one
commentator notes: “[c]oming out of the mists of Equity as a regime
separate from Law, the availability of injunctive relief has long been
associated with just the kind of flexibility we expect to encounter when we
talk about discretion.”138 The notion of broad judicial discretion in the
context of equity is longstanding.139 The flexibility associated with equity
cases is exemplified in the standard applied in determining whether to grant
injunctive relief.140 For example, the determination of whether to grant a
preliminary injunction requires a judge to consider: the likelihood of success
on the merits, balance of harm to the parties, whether there is an adequate
remedy at law, and an assessment of the public interest.141 While this test
sets forth a framework and boundaries around what a court is to consider, it
is a flexible and subjective test that calls for a great deal of judicial discretion
in reaching a fair result.142
Many cases at law similarly call upon judges regularly to exercise
significant discretion in determining important rights including access to the
courts for redress.143 A striking recent example of this in the context of what
had been considered to be fairly straightforward and settled law can be found
in the Supreme Court cases, Bell Atlantic v. Twombly144 and Ashcroft v.
Iqbal.145 These cases changed the standard for evaluating whether a federal
complaint’s allegations are sufficient to survive a motion to dismiss. Under
137
Id. at 976.
138
Id. (footnote omitted).
139
Jared A. Goldstein, Equitable Balancing in the Age of Statutes, 96 VA. L. REV. 485,
492– 93 (2010) (citing I FREDERICK POLLOCK & FREDERIC WILLIAM MAITLAND, THE HISTORY
OF ENGLISH LAW BEFORE THE TIME OF EDWARD I 168 (1895) (“[O]ur king’s court is according
to very ancient tradition a court that can do whatever equity may require.”)) (“Before courts
began to balance the equities, they enjoyed considerable discretion to decide whether to grant
equitable relief.”).
140
Id. at 491.
141
See Winter v. Nat. Res. Def. Council, Inc., 55 U.S. 7, 20 (2008).
142
See Cravens, supra note 76, at 948–49.
143
Id. at 949.
144
550 U.S. 544, 545 (2007).
145
556 U.S. 662, 663 (2009).
Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a “short

and plain statement of the claim showing that the pleader is entitled to
relief.”146 In Twombly and Iqbal, the Court changed that standard, holding
that “[t]o survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim of relief that is plausible on
its face.”147 The Court went on to say that “[a] claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct
alleged.”148 “Determining whether a complaint states a plausible claim for
relief will . . . be a context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.”149
The Supreme Court overturned longstanding civil procedure precedent
by inserting this new “plausibility” requirement.150 The rule long had been
that to survive a motion to dismiss, a complaint need only provide a short
and plain statement of the cause of action sufficient to provide notice of the
matters to be litigated and to serve as an initial screening device for
meritorious cases.151 The purpose of the liberal pleading rule was to ensure
that a complaint provided adequate notice of the matter to be litigated while
giving the complaining party an opportunity, through discovery, to develop
the record to marshal the requisite proof.152 The earlier rule was designed to
favor litigants’ access to the courthouse, by giving litigants who satisfy the
notice pleading requirement access to discovery to develop a record to later
satisfy proof requirements.153 Twombly and Iqbal dramatically change the
standard and the proof requirement at the pleading stage, giving trial judges
the significant, almost unbounded discretion to use their “experience and
common sense” to determine whether a complaint “plausibly” states a cause
of action.154 Needless to say, this task makes judges much more than mere
umpires—it makes them key players. Not surprisingly, Twombly and Iqbal
have spawned a great deal of commentary not only in civil procedure circles
146
Fed. R. Civ. P. 8(a)(2).
147
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570 (emphasis added)).
148
Id.
149
Id. at 679 (citation omitted).
150
See Arthur R. Miller, From Conley to Twombley to Iqbal: A Double Play on the
Federal Rules of Civil Procedure, 60 DUKE L.J. 1, 14 (2010).
151
See Conley v. Gibson, 355 U.S. 41, 45–46 (1957); Miller, supra note 150, at 18.
152
Miller, supra note 150, at 111–12.
153
Id. at 14–15.
154
Id. at 30.
but also with regard to the degree of ambiguity, subjectivity, and judicial
discretion now introduced into the fundamental decision of whether a
litigant will have access to federal court.155
Many cases call upon judges to use discretion, even where formal
“rules” apply and even where the stated rule calls for judicial restraint. For
example, in administrative law, there is an ongoing discussion and debate
about the application of the Chevron156 test in determining whether a court
should defer to an agency’s reasonable interpretation of the statute it
administers. The statement of the Chevron test is fairly straightforward.
First, the court asks whether the statute is clear on the “precise question at
issue.”157 If it is, that clear statement must be followed.158 Second, if the
statute is silent or ambiguous about the precise question in issue, the court
must defer to the agency’s interpretation so long as it is reasonable.159 This
seems to be a reasonably clear test. Yet as many practitioners and scholars
have acknowledged, a great deal of discretion goes into the initial
determination of whether the statute is clear on the precise question at issue
(and, though used less often, whether the agency’s interpretation is
reasonable).160 Indeed, the Chevron test has been characterized as one that
highlights issues of legal ambiguity and allows for significant exercise of
judicial discretion under the guise of a rule of judicial restraint.161
155
See, e.g., David L. Noll, The Indeterminacy of Iqbal, 99 GEO. L.J. 117, 119–20 (2010);
Miller supra note 150, at 31, 43; Michelle Kallen, Plausible Screening: A Defense of
Twombly and Iqbal’s Plausibility Pleading, 14 RICH. J.L. & PUB. INT. 257, 257 (2010).
156
Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984).
157
Id. at 842.
158
Id. at 842–43.
159
Id. at 843.
160
See, e.g., Jonathan T. Molot, Reexamining Marbury in the Administrative State: A
Structural and Institutional Defense of Judicial Power over Statutory Interpretation, 96 NW.
U. L. REV. 1239, 1336–37 (2002) (“For all the effort scholars have devoted to defending the
Supreme Court's transfer of power to agencies, they have not questioned the important
interpretive role the Court has retained, and, indeed, bolstered in its recent decisions. Scholars
have overlooked that judges, and not just administrators, have significant leeway in
interpretation and that judicial review of agency interpretations of statutes entails more than
mere fidelity to legislative instructions.”).
161
See, e.g., Brian G. Slocum, The Importance of Being Ambiguous: Substantive Canons,
Stare Decisis, and the Central Role of Ambiguity Determinations in the Administrative State,
69 MD. L. REV. 791, 794 (2010).
Recognizing the existence of fairly broad judicial discretion raises a

series of problems in the area of judicial selection. Several political
scientists and others have taken the view that judges are little more than
politicians who wear robes.162 Standing at the opposite extreme from the
formalist, “umpire” model of the judge is the so-called attitudinal model that
characterizes judges as mere politicians who use their power and discretion
to put forth their policy (and political) preferences.163 From this vantage
point, judicial selection is simply a matter of political appointment. Theories
and discussions about judicial philosophy, about neutral and impartial
judges restrained and guided only by the law are viewed largely as fictions
designed to mask the true role of the judge as political actor. To be sure,
judicial selection has a decidedly political dimension and there are
arguments in favor of judicial diversity from a purely political viewpoint and
from the perspective of the need for “representation” in the powerful
position judges hold. However, when it comes to the appropriate role that
162
See generally JEFFREY A. SEGAL & HAROLD J. SPAETH, THE SUPREME COURT AND THE
ATTITUDINAL MODEL (1993); Howard Gillman, What’s Law Got to Do with It? Judicial
Behavioralists Test the “Legal Model” of Judicial Decision Making, 26 L. & SOC. INQUIRY
465, 474 (2001).
163
See generally SEGAL & SPAETH, supra note 162; Gillman, supra note 162. There are
of course several other models and theories of judicial decision making that are beyond the
scope of this article. Each model has implications for judicial selection by describing what
judges do and ought to do and what characteristics and qualifications we as a society should
seek in selecting judges. For purposes of this discussion, I consider the judge’s role to require
adherence to the law, which by its terms often allows for flexibility in interpretation within
boundaries set by the constitution, statutes, rules, and precedent. That understanding
admittedly leaves room for some variation in judicial philosophy but certainly not to the point
of permitting judges to act based on ideology alone and not to the point of equating the judge’s
role with that of other politicians. Judges are indeed different. The Supreme Court has
recognized this in Republican Party of Minnesota v. White, acknowledging a “fundamental
tension between the ideal character of the judicial office and the real world of electoral
politics.” 536 U.S. 765, 821 (2002) (Ginsburg, J. dissenting) (quoting Chisom v. Roemer,
501 U.S. 380, 400 (1991)). Indeed, a serious threat to justice and fairness involves the impact
of politics and the influx of campaign money and undue influence in judicial elections in
several states across the country. ALICIA BANNON ET AL., WHO PAYS FOR JUDICIAL RACES?
1–3 (2017), https://www.brennancenter.org/sites/default/files/2019-08/Report_New_
Politics_of_Judicial_Elections_1516.pdf [https://perma.cc/3WQG-T4Y8]; see also Caperton
v. A.T. Massey Coal Co., 556 U.S. 868 (2009). While beyond the scope of this article, this
threat to the legitimacy of the judiciary as a whole also undermines diversity and inclusion.
most judges have played (and hopefully will continue to play), the attitudinal
model is too cynical and simplistic representing the opposing extreme to the
formalist model of judging.
Although several empirical studies have noted that judges’ ideological
preferences have some impact on outcomes in contested cases,164 taken
together, such studies have been largely inconclusive and tend to show both
adherence to the constraints established by the rule of law and the influence
of background, experience, and policy preferences in deciding contested
issues of fact and the fair and just application of the law.165 It is in these
areas of contested application of fact to law to reach the most fair and just
outcomes that the inclusion of judges of various backgrounds and
perspectives adds value. As noted more fully in Section V below, the
inclusion of multiple perspectives in judicial deliberations represents a form
of impartial decision making that can serve to enhance both the appearance
and practice of achieving justice. This is particularly true as it relates to
matters involving societal disparities based on class, race, ethnicity and
historical exclusion, but also applies broadly to the many contested issues
that come before the courts.
C. Judges as More than Politicians in Robes
Acknowledging legal ambiguity and that judging involves exercising
significant discretion in applying law to fact often draws the critique that
judges are no more than “politicians in robes.”166 It can seem particularly
difficult to rebut this notion in the current climate of extreme partisanship
that is yielding an exclusionary federal judicial selection process. Avoiding
164
See, e.g., Lee Epstein & Jack Knight, Reconsidering Judicial Preferences, 16 ANN.
REV. POL. SCI. 11, 24 (2013).
165
See, e.g., Todd Collins & Laura Moyer, Gender, Race, and Intersectionality on the
Federal Appellate Bench, 61 POL. RES. Q. 219, 225 (2008),
http://www.jstor.org/stable/20299727 [https://perma.cc/A8WQ-UEGV]; see also Fred O.
Smith, Jr., Gendered Justice: Do Male and Female Judges Rule Differently on Questions of
Gay Rights?, 57 STAN. L. REV. 2087, 2123–28 (2005).
166
See, e.g., Diarmuid F. O’Scannlain, Politicians in Robes: The Separation of Powers
and the Problem of Judicial Legislation, 101 VA. L. REV. ONLINE 31, 33 (2015). (“[T]he most
effective way to ensure the judicial power is exercised legitimately is to employ a
methodology that relies on the Constitution’s text, structure, and history as constraining
forces. Without such constraints, judges are nothing more than politicians in robes, free to
tackle the social problems of the day based on avant-garde constitutional theory or, worse
yet, their own personal preferences.”).
the “politicians in robes” characterization is challenging given the fact of

very blatant efforts to appoint “conservative” judges and Justices with the
stated aim of seeking certain outcomes like limiting reproductive rights and
“deconstruct[ing] the administrative state.”167 It is also difficult to avoid the
characterization where increasingly on issues of grave importance to the
country—from civil and human rights to gerrymandering—the Supreme
Court has split along starkly political lines.168
In such a climate, it is especially important to reinforce the norm and
expectation that judges will not operate as mere “politicians in robes.” A
recent, rare public statement by Chief Justice John Roberts was meant to
emphasize this point: “[w]e do not have Obama judges or Trump judges,
Bush judges or Clinton judges. What we have is an extraordinary group of
dedicated judges doing their level best to do equal right to those appearing
before them. That independent judiciary is something we should all be
thankful for.”169 Roberts was responding to President Trump’s statement
criticizing a judge and calling him an “Obama judge” because he did not like
the judge’s ruling in an asylum case.170 Roberts also was expressing his
concern about the legitimacy of the federal courts, particularly in the face of
regular attacks on judges by President Trump and others. Though Roberts
certainly has been characterized as a “conservative” justice, he also has
articulated a deep concern for the reputation of the Court as an independent
and non-political institution as central to its legitimacy.171
167
See, e.g., Jeremy W. Peters, Trump’s New Judicial Litmus Test: Shrinking ‘the
Administrative State’, N.Y. TIMES (Mar. 26, 2018),
https://www.nytimes.com/2018/03/26/us/politics/trump-judges-courts-administrative-
state.html [https://perma.cc/JKT5-9YPC].
168
See e.g., Trump v. Hawaii, 138 S. Ct. 2392 (2018); Rucho v. Common Cause, 139 S.
Ct. 2484 (2019).
169
Robert Barnes, Rebuking Trump’s Criticism of ‘Obama Judge,’ Chief Justice Roberts
Defends Judiciary as ‘Independent’, WASH. POST (Nov. 21, 2018),
https://www.washingtonpost.com/politics/rebuking-trumps-criticism-of-obama-judge-chief-
justice-roberts-defends-judiciary-as-independent/2018/11/21/6383c7b2-edb7-11e8-96d4-
0d23f2aaad09_story.html [https://perma.cc/C5R4-VJAE].
170
See id.
171
See, e.g., Brianne J. Gorod, John Roberts and Constitutional Law, 38 CARDOZO L.
REV. 551, 553 (2016) (“John Roberts cares deeply about the institutional legitimacy of the
Court and his reputation as its Chief Justice. Shortly after becoming Chief Justice, he
explained that one of his top priorities was ‘to keep any kind of partisan divide out of the
judiciary,’ and that is a concern that he has repeatedly echoed in the years since. In 2014, for
Sustaining the expectation that judges behave as much more than

politicians in robes (while acknowledging that politics and ideology play a
role in judicial selection and decision-making) is particularly important at
this time of hyper-partisanship. While some studies show that judges’
ideological backgrounds may at times impact decision-making,172 there is
also significant evidence that judges do not behave as pure political actors.
As one study notes: “[w]hile inconsistent with scholarship suggesting that
judicial decision making is ‘ideological,’ the study results complement and
extend other work showing that judges can be expected to display at least
some measure of immunity to cognitive biases thought to interfere with the
performance of their jobs.”173 This understanding of the judge’s role as
existing within in an area of legal ambiguity and broad discretion and at the
same time as bounded by legal and behavioral constraints is critical to a
sense of fairness and judicial legitimacy. To the extent that the true
expectations and experiences of judging are explained and adhered to, both
the legal community and the general public can accept the apparent tensions
between formalist and realist models of judging and understand the complex,
constrained discretion with which judges are tasked.
Our empirical evidence suggests that being informed
about courts may mean that one understands that judges
make decisions in a principled fashion; they are not merely
politicians in robes. The mistake of some research might be
to assume that principled decisionmaking can only be
understood as discretionless or mechanical
decisionmaking . . . . [T]he American people seem to
accept that judicial decisionmaking can be discretionary
and grounded in ideologies, but also principled and sincere.
Judges differ from ordinary politicians in acting sincerely,
and their sincerity adds tremendously to their legitimacy
and the legitimacy of their institution.174
example, he expressed concern about the possibility that the Court was being seen as a
political body.”).
172
Epstein & Knight, supra note 164, at 24.
173
Dan M. Kahan et al., “Ideology” or “Situation Sense”? An Experimental
Investigation of Motivated Reasoning and Professional Judgment, 164 U. PA. L. REV. 349,
412 (2016).
174
James L. Gibson & Gregory A. Caldeira, Has Legal Realism Damaged the Legitimacy
of the U.S. Supreme Court?, 45 L. & SOC’Y REV. 195, 214 (2011).
In short, as Charles Geyh notes: “judges are neither umpires nor politicians
in robes and they are both.”175 This understanding further supports the
importance of diversity and inclusion on the bench.
D. Diversity Narratives in the Legal Academy, Legal Profession, and
Public Discourse
Narratives about the value of judicial diversity in legal and public
discourse reflect and elaborate on those set forth in the debates and
discussions about judicial candidate selection and appointment.176 On one
hand, the value of diversity and especially the inclusion of underrepresented
and subordinated groups is well-documented in the legal academy, legal
profession and beyond.177 The scholarly literature contains many well-
supported arguments providing both theoretical and practical support for the
inclusion of members of underrepresented and subordinated groups on the
bench. For example, several years ago, Professor Sherrilyn Ifill raised key
points about the importance of diversity on the bench as going beyond the
need for role models and a thin notion of representation.178 Professor Ifill
noted the importance of diversity as key to impartiality, fairness, and due
process.179 An important aspect of Professor Ifill’s work is her recognition
of the perceived problem of reconciling traditional notions of impartiality
with advocating for diversifying the bench.180 She notes, for example, the
phenomenon of “a racial double standard for determining impartiality” as
“plagu[ing] judicial diversity efforts.”181 She provides examples of this
double standard by noting recusal motions made by white litigants against
black judges based on concerns about their “racial impartiality” while such
motions do not tend to be made against white judges.182
175
Charles Gardner Geyh, Judicial Selection and the Search for Middle Ground, 67
DEPAUL L. REV. 333, 347 (2018).
176
See, e.g., Tobias, supra note 49, at 747; Michael Nava, The Servant of All: Humility,
Humanity, and Judicial Diversity, 38 GOLDEN GATE U. L. REV. 175 (2008).
177
Ifill, Beyond Role Models, supra note 12, at 409–12.
178
Id.
179
Sherrilyn A. Ifill, Through the Lens of Diversity: The Fight for Judicial Elections After
Republican Party of Minnesota v. White, 10 MICH. J. RACE & L. 55, 82 (2004) [hereinafter
Ifill, Through the Lens of Diversity].
180
Ifill, Beyond Role Models, supra note 12, at 461.
181
Id. at 462.
182
Id. at 459–61.
Given the enduring power of our socially constructed racial

identities, we should expect a judge’s experience as a white
man or a black woman, for example, to influence his or her
“outlook on life” or “conception of social needs.” This
means we should expect both black and white judges to be
influenced in some part by their racial experiences. Yet, the
challenges to black judges in Local Union 142, Blank, and
later cases suggest that white judges may be enjoying a
perception of built-in racial impartiality that parties deny to
black judges. In this way, whiteness is “transparent,”
appearing to have no racial significance. Blackness,
however, is equated with ideology, bias, and “special
interest.”183
Ifill also identifies a conception of impartiality that contemplates a “view
from everywhere” that is similar to the justice constructs outlined by Sen
and Young in the discussion below184: “[i]mpartiality has a structural
dimension as well that implicates the bench as a whole and that is directly
connected to diversity. When describing structural impartiality, I refer to
the overall composition of the bench in a jurisdiction.”185
Professor Ifill observes that judging, impartiality, and justice are
improved through the inclusion of diverse perspectives and experiences—
especially those of previously excluded members of historically
marginalized groups.186
Critical Race scholars and others have identified and documented the
presumptions that accompany white privilege, including the norming of
whiteness and its treatment as associated with neutrality.187 “Critical
writings in the United States have given voice to ‘others’; they have
deconstructed the legal master narrative to reveal its elitist and exclusionary
foundation in specific class (wealthy, propertied, educated), race (White),
and sex (male).”188 These observations are often noted in response to claims
that diversity somehow impairs impartiality.
183
Id. at 461 (footnotes omitted).
184
See infra notes 211–212and accompanying text.
185
Ifill, Through the Lens of Diversity, supra note 179, at 81.
186
Id. at 82.
187
Berta Esperanza Hernández-Truyol & Sharon Elizabeth Rush, Culture, Nationhood,
and the Human Rights Ideal, 5 MICH. J. RACE & L. 817, 834 (2000).
188
Id. at 827.
Yet, despite the compelling case Professor Ifill and many others189 have
made over the years, and despite the strides made in diversifying some
courts, there remains a real struggle to sustain both theoretical and practical,
in-the-trenches, support for diversity on the bench and to ensure lasting
progress in achieving that diversity and inclusion.190 Some of this struggle
comes from those who plainly oppose any and all race-conscious efforts to
achieve greater inclusion of members of historically underrepresented
groups in judgeships or indeed any positions of power and authority.191
Some comes not from opposition to improving diversity per se, but on
disagreement about how to achieve it.192 This includes those who argue that
the law is and should be colorblind and that any and all consideration of race,
ethnicity, gender, or other characteristics should be treated as suspect and
prohibited regardless of social reality.193
In the context of judicial selection, it is difficult to argue that race, class,
ethnicity, and gender do not matter, while at the same time noting the value
of human experience to the task of judging. While the value of impartiality
and the fair and equal assessment of similar facts and the application of law
on a consistent basis are central to legitimate judicial decision-making, there
remains the reality of judgment and discretion as part of what judges are
tasked to do.194 Indeed, as noted in the previous section, much of what
judges are tasked with involves a significant exercise of discretion.
189
See, e.g., Hawkins, supra note 5; see Tobias, supra note 49; see McArdle, supra note
87.
190
This remains true despite significant good faith efforts to improve diversity on the
state and federal levels. There is a great deal of difference among and within states with
regard to judicial selection in general and the degree to which diversity is prioritized in
particular. See supra notes 36–43 and accompanying text. Some state and local appointing
authorities and screening committees are clearly devoted to improving diversity and
inclusion, while others give this goal little or no priority. Id.
191
An example of this view is Chief Justice Roberts statement that “[t]he way to stop
discrimination on the basis of race is to stop discriminating on the basis of race.” Parents
Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 748 (2007).
192
Id. (Thomas, J., concurring). Some who subscribe to colorblindness and to the
elimination of affirmative action argue that such approaches would be more effective in
eliminating discrimination. Id. I have seen little evidence of this, given the persistence of
racial hierarchy and relationships of social dominance and subordination over time.
193
Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting).
194
See, e.g., Republican Party of Minn. v. White, 536 U.S. 765, 778 (2002) (quoting Laird
v. Tatum, 409 U.S. 824, 835 (1972)) (“[E]ven if it were possible to select judges who did not
Given the general rejection of traditional formalist views of judges as

neutral arbiters of static legal principles,195 there is broad recognition of the
role of race, ethnicity, gender, and class in societal interactions including
engagement with the justice system. In short, human experience, including
race, class, ethnicity, gender, etc., matters in the process of dispensing
justice.196
If traditional formalist notions of judges as engaging in tabula rasa
decision-making have been rejected and if there is broad recognition of need
and appropriateness of greater inclusion of people of color and women on
the bench, why does achieving greater diversity in the appointive process
remain so stubbornly elusive? One rationale often given is the degree to
which implicit bias plays a role in hampering the judicial selection process
as a practical matter.197 Studies in cognitive science and empirical analyses
of judicial decision-making have demonstrated the influence of deeply
embedded notions about race, ethnicity, class, and gender.198 Thus,
questions of implicit bias arise both in the context of judging and in the
process of selecting judges.
Recognition of the need to address implicit bias in judicial selection has
spurred calls for diversity guidelines and rules and support for efforts to
recruit judicial candidates from underrepresented groups. For example, the
Brennan Center for Justice includes among its judicial selection
recommendations the need to “[g]rapple fully with implicit bias . . . [b]e
clear about the role of diversity in the nominating process in state
have preconceived views on legal issues, it would hardly be desirable to do so. ‘Proof that a
Justice’s mind at the time he joined the Court was a complete tabula rasa in the area of
constitutional adjudication would be evidence of lack of qualification, not lack of bias.’”);
Erwin Chemerinsky, Seeing the Emperor’s Clothes: Recognizing the Reality of Constitutional
Decision Making, 86 B.U. L. REV. 1069, 1077 (2006); RICHARD A. POSNER, HOW JUDGES
THINK 9 (2010); Wardlaw, supra note 74, at 1633.
195
Neil S. Siegel, Umpires at Bat: On Integration and Legitimation, 24 CONST.
COMMENT. 701, 724 (2007) (“[T]here is no view from nowhere in constitutional law, no place
for a Justice to stand that is divorced from the culture and society in which the Court
operates.”).
196
See generally TOUGH CASES (Russell F. Canan, Gregory E. Mize & Frederick
Weisberg eds., 2018) (collecting narratives about judges’ most difficult cases and noting the
role of human experience in judging).
197
TORRES-SPELLISCY, CHASE & GREENMAN, supra note 62, at 36.
198
John F. Irwin & Daniel L. Real, Unconscious Influences on Judicial Decision-Making:
The Illusion of Objectivity, 42 MCGEORGE L. REV. 1, 2 (2010).
statutes . . . [t]rain Commissioners to be effective recruiters and

nominators . . . [c]reate diverse Commissions by statute . . . [and] . . .
[m]aintain high standards and quality . . . .”199 Recommendations for
addressing implicit bias often look to providing training that includes
discussion, observation, and examples of cognitive categorization and
unconscious biases and techniques for checking them.200 Of course, implicit
bias is often difficult to address without drawing defensive responses among
commission members.201 Moreover, I believe that something other than
implicit bias operates in the background in appointive judicial selection
affecting people of good faith who support diversity efforts.
V. THE IMPACT OF FOUNDATIONAL IDEAS OF JUSTICE ON
DIVERSITY IN JUDICIAL SELECTION
Foundational notions of justice and assumptions related to them may
play a significant, unacknowledged role in the way that members of
appointive committees think about judges and judging. Notwithstanding
wide recognition that judges and judicial candidates cannot take the bench
as “blank slates,” there persists the notion that judges should strive as closely
as possible to leave their backgrounds and experiences behind when taking
up the task of dispensing justice.202 There seems often to be suspicion that
“outsider” candidates will find it harder to divorce themselves and their
judging from their background experiences.203 This assumption is related to
how we think about first principles related to justice. Consistent with the
iconic image of “Lady Justice” blindfolded, holding scales in one hand and
a sword in the other, an understanding of justice from the perspective of what
Rawls describes as a “view from nowhere” or a requiring a “veil of
ignorance” is a deeply embedded cognitive frame. This powerful vision of
blind justice represents an image of justice and fairness that is aspirational
and difficult to oppose. Yet when placed within the context of social reality
199
TORRES-SPELLISCY, CHASE & GREENMAN, supra note 62, at 36–41.
200
Irwin & Real, supra note 198, at 8.
201
Cynthia M. Frantz et al., A Threat in the Computer: The Race Implicit Association
Test as a Stereotype Threat Experience, 30 PERSONALITY & SOC. PSYCHOL. BULL. 1611, 1612
(2004).
202
See Paul Troop, Why Legal Formalism is Not a Stupid Thing, 31 RATIO JURIS 428, 439
(2018), https://onlinelibrary.wiley.com/doi/pdf/10.1111/raju.12225 [https://perma.cc/H798-
A286].
203
This relates to Professor Ifill’s observation that “outsider” judges are exhorted to “strip
down like a runner” or remove the markers of their experience when taking up the task of
judging. See Ifill, Beyond Role Models, supra note 12, at 457.
and human experience, there is a need to hold on to Lady Justice as a goal

while acknowledging that the practice of justice requires consideration of
social reality and engagement with competing perspectives rather than pure
detachment from them.
This section explores how certain foundational ideas about “blind
justice” may contribute sub rosa to this notion of a white male judge as
symbolically neutral. It then challenges such notions of impartiality and
argues that inclusion and diversity are centrally important to improving
fairness and impartiality overall and contribute to the legitimacy of the
judicial branch. Addressing the underrepresentation of groups historically
marginalized in United States law and social custom must continue to be a
central concern in the process of judicial selection. Including people with
some understanding of traditionally excluded, subordinated and silenced
perspectives is critically important to improving the delivery of justice and
upholding the rule of law. This is not just because the judiciary’s unique
role in interpreting and applying the law calls for a bench that is inclusive of
a range of backgrounds, experiences, and views in society.204 It is not just
because the work of the judge involves much more than formulaic
applications of law and precedent but rather the interpretation of both facts
and law, and the application of the law to novel circumstances—a process
that often involves policymaking and drawing from the range of human
experience.205 I concur with these rationales and with the many arguments
supporting judicial diversity based on them.
However, a clearer relationship may be drawn between including
diverse perspectives on the bench that represent historically excluded or
silenced experiences and foundational philosophical notions of justice.
Identifying and naming some of the deep structures behind notions of
impartiality, neutrality and colorblindness as related to judging that are
grounded in political philosophy may help unpack some current thinking
about impartiality and fairness in judging.206 Responding to notions of
204
See id. at 451.
205
See, e.g., Posner, supra note 194, at 8; Burt Neuborne, The October 2008 Term: First
Amendment and Then Some, 26 TOURO L. REV. 465, 466 (2010); Bryan D. Lammon, What
We Talk about When We Talk about Ideology: Judicial Politics Scholarship and Naive Legal
Realism, 83 ST. JOHN’S L. REV. 231, 241 (2009).
206
This approach does not speak to examples of blatant racism that seek actively to
exclude all but white males from the judiciary and other leadership positions in government.
Instead, it seeks to respond to subconscious tendencies to view the inclusion of members of
“outsider” groups as somehow at odds with impartiality based on misguided equations of a
white male “norm” as aligned with a position of “neutrality.”
impartiality that frame diversity efforts as somehow contrary to justice,

impartiality, or fairness may reveal significant problems with such framing.
Explaining instead how inclusion on the bench of members of historically
marginalized groups is directly concerned with thick notions of fundamental
fairness, impartiality, and justice may help replace misguided assumptions
with practical responses. If we are to achieve a consensus in which diversity,
and particularly the inclusion of people from under-represented and
marginalized groups, is accepted as central to fair and legitimate decision-
making (and therefore central in judicial selection), there is a need to
confront the deep structures and underlying theories at play in our thinking
and conversations about judges and justice.
Some of these deep structures or commonly shared background ideas
about judging and justice are based on notions of justice like those
articulated in John Rawls’s Theory of Justice which envisions justice and
fairness as requiring a “view from nowhere” as a starting point.207 This
foundational notion of “neutral” justice, without an understanding of
Rawls’s purpose208 and without a searching consideration of what it means
in a society stratified along racial, ethnic, gender, and class lines, can create
difficulty in seeing the connection between inclusion of diverse voices and
the improvement of justice.209
A helpful contrast to Rawls’s “view from nowhere” is philosophical
discourse on justice recognizing that the inclusion of diverse people and
207
JOHN RAWLS, A THEORY OF JUSTICE 16–17 (1971) [hereinafter RAWLS, A THEORY OF
JUSTICE]; see also, JOHN RAWLS, JUSTICE AS FAIRNESS: A RESTATEMENT 88 (Erin Kelly ed.,
2003) [hereinafter RAWLS, JUSTICE AS FAIRNESS].
208
Rawls further explains his notions of justice by moving beyond the “view from
nowhere” and “veil of ignorance” to propose a “difference principle” that incorporates ideas
of equality very much in line with approaches to justice proposed here. Id. at 83.
209
I choose Rawls’ Theory of Justice as a focal point based on the recognition in many
quarters of the impact of his work on modern theoretical liberal conceptions. See, e.g.,
GEORGE LAKOFF, MORAL POLITICS: HOW LIBERALS AND CONSERVATIVES THINK 20–21 (2d
ed. 2002). I am not saying that Rawls’s theory had the intent or effect of seeking to exclude
outsiders—quite the contrary—his aim was to establish a level playing field for determine
what is “just.” Rawls’s theory seeks ultimately to define justice in an ideally inclusive and
fair manner. The problem is that in establishing the “view from nowhere” as its abstract
starting point, Rawls’s theory does not grapple with concrete issues of social stratification
and leaves space for a notion of impartiality and justice that fails to acknowledge and thus
works against “difference.”
perspectives serves to improve the quality of justice in the broadest sense.210

The works of political philosophers Amartya Sen211 and Iris Marion
Young212 persuasively articulate notions of justice in concrete rather than
transcendental terms that take account of the realities of difference in
society.213 Sen describes a vision of justice that builds on and critiques the
work of John Rawls and other political philosophers whose theories of
justice come from an “original position” that claims a neutral “view from
nowhere”.214
Rawls and several other theorists take the position that to achieve justice
the starting point must be a position of pure impartiality—detached from any
particular point of view, race, class, ethnicity, interest.215 From that position
is developed a “social contract” that “reasonable minds” agree will create
“just” institutions.216 Sen argues that rather than a transcendental theory of
justice based on the notion of an ideal social contract developed through the
210
IRIS MARION YOUNG, JUSTICE AND THE POLITICS OF DIFFERENCE 105 (1990).
211
SEN, supra note 24, at 10–12.
212
YOUNG, supra note 210, at 101.
213
Id. at 100; SEN, supra note 24, at 100.
214
SEN, supra note 24, at 53.
215
Id.
216
My critique is not that Rawls is unconcerned with societal inequality – to the contrary
his work aims for a framework of fairness that seeks to level the playing field. Rather, the
concern is that his approach, though appealing in the abstract, establishes a model of
impartiality that is unachievable in practice and that can be used to mask the perspectives of
those in positions of power. As George Lakoff summarizes it:
Rawls sought to modify classic liberalism to include social issues, such

as poverty, health and education. He proposed the following social-
contract theory of a just society (presented here in a much oversimplified
fashion) to be added on to the classical view of the autonomous rational
actor:
1. The Veil of Ignorance: the social contract must be drawn up as if no
one knew where they were going to fit into society.
2. The result is that justice is seen as fairness. After all, if you don’t know
where you are going to fit into a society, you will want that society to be
fair. If you were to wind up as low man on the totem pole, you would
want that not to be so bad a position to be in.
LAKOFF, supra note 210, at 20. The problem is that decision makers know where they fit in
society and have a viewpoint even when they are not considered to be “outsiders”.
detached creation of just institutions, justice is better achieved within a

discursive context that includes various points of view and seeks to arrive,
through conversation and deliberation, at improving justice as a practical
matter.217 Sen argues that it is not possible to achieve a “view from
nowhere” and that even it if were, resolving issues of justice may require
consideration of more than one “correct” or “reasonable” result that is “just”
and “fair.”218
Iris Marion Young makes the point more directly, noting that
impartiality is impossible in human affairs and that pretending to have
impartial decision-making results not in justice or fairness but rather “will
usually yield outcomes in the interests of the more powerful.”219 Sen and
217
SEN, supra note 24, at 56–57.
218
Sen gives as an illustration of the “problem of a unique impartial resolution of the
perfectly just society . . . the possible sustainability of plural and competing reasons for
justice, all of which have claims to impartiality and which nevertheless differ from—and
rival—each other.” Id. at 12. He tells a story of three children, each of whom wants a flute.
Id. at 12–14. One “claims the flute on the ground that she is the only one . . . who knows how
to play it . . . .” Id. at 13. The second claims it because he “is so poor that he has no toys of
his own.” Id. The third points out that she has worked “diligently for many months to make
the flute with her own” hands. Id. Sen notes that there is a just rationale supporting each of
these conclusions. Id. The determination of the most just resolution is improved by
consideration of all of them rather than starting from a point of view that excludes one or
more of them. See id. at 12–14.
219
YOUNG, supra note 210, at 114–15. Young states that
it is simply not possible for flesh-and-blood decisionmakers, whether in

government or not, to adopt the standpoint of transcendental reason when
they make decisions, divorcing themselves from the group affiliations
and commitments that constitute their identities and give them a
perspective on social life. But it does not follow from the particularity of
their histories and interests that people are only self-regarding, unable
and unwilling to consider other interests and points of view. The pluralist
ideology that defines economic and social interests as purely self-
regarding and the state as impartial, however, encourages thinking in
only self-regarding terms.
Id. at 114. She goes on to note that
[t]he myth of the neutral state serves an ideological function insofar

as it helps account for the distributive paradigm of justice. Most
discussions of justice assume, implicitly or explicitly, that justice is
Young’s work focuses on the limits of a traditional transcendental,

contractarian notion of justice that claims the necessity of a purely impartial
starting point.220
This contractarian view, most often identified in law with John Rawls,
is also at play in the work of several political theorists whose work has
strongly influenced the development of law, political theory, and
government policy.221 It has influenced much of the thinking about the
nature of impartiality required for fair and just judicial decision-making.222
A brief exploration of Rawls’s detached notion of justice and a comparison
with theories that frame impartiality as better achieved through a “view from
everywhere” might help in developing ways of thinking about justice that
value diversity as consistent with and indeed necessary to fair and impartial
decision-making.223
A. Rawls’s Theory of Justice: The Aspiration of Pure Impartiality
Misused to Exclude “Others”
John Rawls’s Theory of Justice sets forth the well-known idea that the
task of justice requires as its starting point taking a “view from nowhere”
and the consideration of the parties and issues from behind a veil of
“dispensed” by an authority, and that this authority is impartial. Most

discussions of social justice also assume that issues of justice concern
solely or primarily the principles by which government policy should be
guided. If reflection on justice assumes the state as a realm of impartial
decisionmaking that transcends and comprehends all partial interests,
perspectives, and commitments, then the only significant issues of justice
are distributive. If we assume the distributors are impartial and thus take
all interests in the society into account, then there is no reason to make
an explicit issue of the just organization of decisionmaking power.
Id. at 115.
220
SEN, supra note 24, at 204–05; YOUNG, supra note 210, at 100.
221
Charles Fried, Philosophy Matters, 111 HARV. L. REV. 1739, 1747–48 (1998).
222
Id. at 1744.
223
Rawls himself acknowledged this alternative conception of justice that takes into
account various perspectives on a just result. For example, he describes “intuitionism” as a
theory of justice in which “a plurality of first principles” must be identified and the
determination of which take priority is said to be based on “intuition.” RAWLS, JUSTICE AS
FAIRNESS, supra note 207, at 39. Rawls finds this notion problematic given the likelihood
that “priority” will be based on self-interest and this argues for the “view from nowhere” as
a way of addressing the question of priority in a fair and determinate manner. Id. at 40–41.
ignorance of particular characteristics, social situations, or experiences.224 It

is a position that imagines the possibility of an original state of pure
impartiality that can lead to a universally-accepted social contract that
supports reason and justice over self-interest and entrenched positions.225
This idea (or ideal) of justice requiring impartial, dispassionate actors who
bring no particular perspective, interests or biases to the establishment of
just institutions is articulated in John Rawls’s Theory of Justice as “the
original position,”
a point of view from which a fair agreement between free
and equal persons can be reached; but this point of view
must be removed from and not distorted by the particular
features and circumstances of the existing basic structure.
The original position, with the feature I have called the “veil
of ignorance” . . . specifies this point of view. In the
original position, the parties are not allowed to know the
social positions or the particular comprehensive doctrines
of the persons they represent. They also do not know
persons’ race and ethnic group, sex, or various native
endowments such as strength and intelligence, all within the
224
Id. at 137.
225
Id. at 138. Rawls’s theory of justice is based on contract (or contractarian) theory.
PATRICK HAYDEN, JOHN RAWLS: TOWARDS A JUST WORLD ORDER 8 (2002). Contract theory
describes a number of theories addressing “government legitimacy, social justice and political
and moral obligation.” Id.
The central mechanism of the contractarian argument is agreement.

In its classical forms, contract theory sought to justify the political
authority of the state, that is, to account for the legitimate exercise of
authority by a sovereign over the members of society. The classical
contract theorists argued that the justification of political authority and
moral principles rests upon what people have, or would have, agreed
upon. Following a contract theory of political obligation, it is possible to
develop a theory of social justice that includes an account of the rights,
duties and obligations of individuals based upon a form of agreement or
contract in which consent has been given by the members of society.
Contract theories derive a structure of obligations and duties, what we
can call a theory of right, and this structure is erected upon the consent
of autonomous individuals.
Id.
normal range. We express these limits on information

figuratively by saying the parties are behind a veil of
ignorance.226
Rawls states
that the parties in the original position are equal. That is, all
have the same rights in the procedure for choosing
principles; each can make proposals, submit reasons for
their acceptance, and so on. Obviously, the purpose of these
conditions is to represent equality between human beings as
moral persons, as creatures having a conception of their
good and capable of a sense of justice.227
Rawls uses the “original position” as a place from which to compare
convictions about or practices relating to justice and the basic structure of
society and to test those practices against the conception of justice taken
from the original position.228
We can note whether applying these principles would lead
us to make the same judgments about the basic structure of
society which we now make intuitively and in which we
have the greatest confidence; or whether, in cases where our
present judgments are in doubt and given with hesitation,
these principles offer a resolution which we can affirm on
reflection.229
Rawls goes on to say
[f]or example we are confident that religious intolerance
and racial discrimination are unjust. We think that we have
examined these things with care and have reached what we
believe is an impartial judgment not likely to be distorted
by an excessive attention to our own interests. These
convictions are provisional fixed points which we presume
any conception of justice must fit. But we have much less
assurance as to what is the correct distribution of wealth and
authority.230
226
RAWLS, JUSTICE AS FAIRNESS, supra note 207, at 15 (citations omitted).
227
Id. at 19.
228
Id. at 18–19.
229
Id. at 19.
230
Id. at 19–20.
Here, Rawls does not take on the relationship between discrimination as a

structural matter and the distribution of wealth and authority. Similarly, in
a later passage addressing the “difference principle,” Rawls notes that “in
order to treat all persons equally, to provide genuine equality of opportunity,
society must give more attention to those with fewer native assets and to
those born into less favorable social positions.”231 However, he goes on to
say that
[t]he natural distribution is neither just nor unjust; nor is it
unjust that persons are born into society at some particular
position. These are simply natural facts. What is just and
unjust is the way that institutions deal with these facts.
Aristocratic and caste societies are unjust because they
make these contingencies the ascriptive basis for belonging
to more or less enclosed and privileged social classes. The
basic structure of these societies incorporates the
arbitrariness found in nature.232
Again, despite his description of the original position, Rawls does not appear
to see how one might critique the view that the basic structure of unjust
societies simply mirrors “natural” hierarchies of difference as a position
inconsistent with a “view from nowhere.”233 This raises concerns about the
“point of view” of the original position.234
Contract theory, the “original position” and the view from behind a “veil
of ignorance” present a powerful vision of a just world in which there is
agreement that all individual self-interest is set aside to permit the
establishment of perfectly just institutions in which everyone gets fair and
equal consideration and treatment.235 The notions of the “original position”
and the “veil of ignorance” are particularly potent in that by not permitting
the decision maker to know her position, the claim is that she must be
prepared to comply with all rules and punishments established for society
through just institutions.236 This notion is embedded in the political
philosophy that is associated with the construction and development of
231
Id. at 100.
232
Id. at 102.
233
Id.
234
Id.
235
Id. at 13.
236
Id. at 12, 18–19.
democratic institutions in the United States.237 It is very closely linked with

notions of procedural fairness that are considered core to achieving
justice.238 Yet for all its appeal and for all of our yearning for the existence
of such impartiality, experience demonstrates that it is not attainable in
practice.239
Among the difficulties identified with Rawls’s original position is the
fact that it does not explicitly engage with issues of race, class, gender or
other structural relationships of dominance and subordination.240 As several
commentators have observed, this is not because Rawls was not concerned
with inequality.241 Quite the contrary. As the above passages demonstrate,
Rawls was very much aware of inequality based on race and other factors
and very much concerned with reaching a state of equality. However, while
Rawls’s view of justice envisioned a world free of racial and other
hierarchies, he chose not to engage practical means for realizing that vision
other than through a process of detachment that sought to arrive at principles
of justice from a hypothetical original position impossible to achieve as a
practical matter.242
The aspirational goal of a society in which decisions are made from a
completely impartial (and thus fair and just) perspective has had the effect
of masking the positionality of people who hold decision-making power.243
It provides a justification for the view that governing institutions are capable
of being established from a procedurally pure standpoint notwithstanding
the reality of power structures of dominance and subordination in the
establishment of most if not all institutional structures. Rawls’s vision
therefore has served, intentionally or not, to help equate an original position
of impartiality with the perspective of those who hold the greatest power and
237
Although I cite Rawls as a primary proponent of this position, social contract theory
and the notion of justice as springing from a detached (or “natural”) original position describe
longstanding stands of political theory. Rawls cites the “familiar theory of the social contract
as found . . . in Locke, Rousseau, and Kant” among others. Id. at 10. My goal in this article
is not to plumb the depths of political philosophy, but rather to draw connections between
such theories of justice and practical conceptions of what judges do as related to how they
are selected.
238
Id. at 11.
239
Id. at 21.
240
See id. at 11.
241
See id.
242
Id. at 12.
243
Id. at 186–87.
privilege.244 When we look at the demographics of power in the United

States since its founding, including the make-up of the Supreme Court
bench, the effect of this hopeful but ultimately unattainable and misleading
vision of impartiality on the practical dispensation of justice becomes
apparent.245
While Rawls’s idea of decision-making from a purely neutral position
among equals is appealing, the reality is the notion of what the social
contract should look like comes from a particular (privileged) perspective.246
Rawls’s notion of a transcendental state of pure impartiality as a starting
point for justice and fairness is a necessary component of a conversation
about justice.247 However, Rawls’s “view from nowhere” offers a single
point of view, said to be removed from the reality of socioeconomic
relationships of dominance and subordination yet meant to operate as a
guidepost in the articulation and delivery of justice.248 As a result it has been
used implicitly as a model for judging and justice that often denies the
realities of structural injustice.249 It also denies the possibility of multiple
just perspectives as reasonable responses to problems of justice.250 A major
flaw is that Rawls’s vision may be used to stand in the name of justice as an
obstacle to greater inclusion that would do more to address structural
injustice and to improve justice as a practical matter. I do not mean to say
that this is an interpretation or an outcome that Rawls intended. Indeed,
much of Rawls’s theory is centered on and supports the need for greater
social equality and considers the “view from nowhere” to be a necessary
avenue toward achieving it.251
244
Id. at 86–87.
245
Bruce Drake & John Gramlich, 5 Facts about the Supreme Court, PEW RES. CTR. (Oct.
7, 2019), https://www.pewresearch.org/fact-tank/2019/10/07/5-facts-about-the-supreme-
court/ [https://perma.cc/M6LY-62UZ] (noting that nearly all Supreme Court Justices have
been white, non-Hispanic men, and that only four women and three non-whites have served
on the Court since its inception).
246
RAWLS, THEORY OF JUSTICE, supra note 207, at 389–90.
247
Id. at 256–57.
248
Id. at 14–15.
249
Tommie Shelby, Race and Social Justice: Rawlsian Considerations, 72 FORDHAM L.
REV. 1697, 1698 (2004).
250
RAWLS, THEORY OF JUSTICE, supra note 207, at 95–96.
251
See Shelby, supra note 249, at 1700–01 (“it is a mistake to think, as some have, that
abstraction from the social realities of race within the contractarian model is necessarily a
way of obfuscating or denying the centrality of racial domination to the historical
Moreover, in his later work, Justice as Fairness: A Restatement, Rawls

explains the original position in a manner apparently intended to be
consistent with an inclusive notion of justice.252 In explaining the original
position, Rawls starts with the “organizing idea of society as a fair system
of cooperation between free and equal persons.”253 He then asks how the
fair terms of cooperation might be specified, acknowledging the difficulty
in identifying a source for such terms be it “God’s law,” “rational intuition,”
or “natural law”.254 Noting that “given the assumption of reasonable
pluralism, citizens cannot agree on any moral authority,” Rawls concludes
that there is no better alternative than “an agreement between citizens
themselves reached under conditions that are fair to all[.]”255 Rawls’s
original position and “view from nowhere” are meant to get to this kind of
agreement without privileging a particular view.256 However, this causes
Rawls to avoid engaging the possibility of multiple just approaches.
There is much about Rawls’s “view from nowhere” that supports and
relates to notions of neutrality that have been used, rightly or not, in
opposition to affirmative efforts to include historically marginalized and
subordinated groups in setting the terms of agreement and in the process of
judging and judicial selection.257 Indeed, the fact 107 out of the 112 people
who have served as Supreme Court Justices have been white males in a
country as diverse as the United States should be cause to question an ideal
of impartiality that does not privilege any particular perspective and is
designed to serve justice for all.258
development of modern societies. On the contrary, within Rawls’s theory this abstraction
insures that racial bias is not codified in or further entrenched by our shared conception of
justice. It is precisely because there are unjustified racial inequalities that the parties in the
original position are prevented from knowing the racial identity of those they represent.”).
252
RAWLS, JUSTICE AS FAIRNESS, supra note 207, at 16.
253
Id. at 14.
254
Id. at 14–15.
255
Id. at 15.
256
Id.
257
Again, this is not to say that Rawls did not see racial inequality as a problem of justice
or would oppose efforts to re-dress injustice based on race. See e.g., Anita L. Allen, Race,
Face, and Rawls, 72 FORDHAM L. REV. 1677, 1695 (2004) (“It is pretty clear from reading
Rawls that he did not want race to matter in just societies. But I see nothing in Rawls to rule
out race-conscious programs that stand to benefit the least advantaged in society.”).
258
Drake & Gramlich, supra note 245.
The “view from nowhere” appears to resonate strongly with arguments

favoring colorblind justice and exhorting us, to paraphrase Chief Justice
Roberts, not to take race into consideration by not taking race into
consideration.259 However, the erroneous equation of a “view from
nowhere” with the impartiality required for effective judging ignores the
widespread rejection of formalist notions of the judge’s task as well as the
reality of structural injustice apparent throughout the justice system today.260
It also ignores the fact that all judges, not just “outsider” judges approach
the task of judging from a particular perspective.261
The narrative of pure impartiality, in addition to denying the reality of
human experience, denies the reality of judicial decision-making.262 As
noted above, judging involves much more than the application of static legal
principles and the application of precedent—judging involves the evaluation
and interpretation of facts and of law, consideration of often competing
interests and considerations, and yes, judgment.263 Strictly formalist notions
259
Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 748 (2007).
This is not to say that Chief Justice Roberts’s view of colorblindness is actually based on
Rawls’s view from nowhere—quite the contrary—Roberts’s articulation of colorblindness
comes from a particular ideological perspective that has among its goals the elimination of
affirmative efforts to redress persistent racial inequality. It is an example, however, of how
an articulated “neutral” view is used to mask the existence of a particular position that seeks
a particular outcome.
260
RAWLS, JUSTICE AS FAIRNESS, supra note 207, at 29–30.
261
Id. at 30.
262
Id. Of course, it may be argued that Rawls’ “view from nowhere” is designed to allow
for fair, just application of judicial discretion. While I agree that this is consistent with Rawls’
aim, my argument is that his veil of ignorance has been misinterpreted to equate with a
particular perspective considered “normal” or “neutral” rather than serving to establish the
open minded starting point he seemed to intend.
263
As one judge somewhat lightheartedly said about judging:
Current scholarship . . . makes it clear that election returns—

politics—play a role (as well as ideology, life experiences, emotion,
personality, collegiality; and maybe religion, strategy, illness, and a bad
hair day). And . . . not just . . . elections in which judges have to run for
office. . . .
What some scholars . . . seem to forget is that law, lawyers, litigants,
precedent, statutes, constitutions, treaties, other legal materials
of judging and the role of judges are not borne out when one actually
examines the process of judging.264 Therefore, the quality of a judge lies not
only in her intellect, credentials, temperament, knowledge of the law and
legal boundaries, but also in the experiences and perspective she brings to
the task.265 While a judge must know and adhere to the boundaries set by
the law, she must also come to judging with an open mind and with an
understanding of the human effect of her decision-making.266
(sometimes legal scholarship!), and even craft and imagination play

extensive roles too.
Robert Henry, Do Judges Think? Comments on Several Papers Presented at the Duke Law
Journal’s Conference on Measuring Judges and Justice, 58 DUKE L.J. 1703, 1704–05 (2009).
264
See, e.g., Brian Z. Tamanaha, Balanced Realism on Judging, 44 VAL. U. L. REV. 1243,
1245 (2010) (expressing skepticism about claims of the existence of legal formalism and
urging “balanced realism” as a more accurate description of the mix of rule-bound and
discretionary decisions judges make); Harry T. Edwards & Michael A. Livermore, Pitfalls of
Empirical Studies that Attempt to Understand the Factors Affecting Appellate
Decisionmaking, 8 DUKE L.J. 1895, 1966–67 (2009) (discussing the limits of empirical
scholarship on judicial decisionmaking and suggesting more nuanced communication
between judges and scholars); POSNER, supra note 194, at 4; Pat K. Chew & Robert E. Kelley,
Myth of the Color Blind Judge: An Empirical Analysis of Racial Harassment Cases, 86
WASH. U. L. REV. 1117, 1156 (2009) (finding that “the race of judges matters, as does their
political affiliation” and that “judges of all races are attentive to the merits of the case”);
Jennifer L. Peresie, Female Judges Matter: Gender and Collegial Decisionmaking in the
Federal Appellate Courts, 114 YALE L.J. 1759, 1787 (2005) (noting that “[j]udges’ gender
matters both to what the bench looks like and to what it decides”); Daniel R. Pinello, Linking
Party to Judicial Ideology in American Courts: A Meta-Analysis, 20 JUST. SYS. J. 219, 243
(1999) (analyzing results of hundreds of separate empirical studies on judging and concluding
that political party affiliation influences judging).
265
See id.
266
This is not to eschew impartiality as a requirement of judging. An articulation of
impartiality that does not require a view from nowhere but does require fair and consistent
application of the law as well as an open mind is consistent with a common sense notion of
what justice requires.
A . . . possible meaning of “impartiality” (again not a common one)

might be described as open-mindedness. This quality in a judge
demands, not that he have no preconceptions on legal issues, but that he
be willing to consider views that oppose his preconceptions, and remain
open to persuasion, when the issues arise in a pending case.
As noted above, confirmation debates regularly raise issues of ideology,

judicial activism, etc.267 The fact is that courts generally, and appellate
courts in particular, are the place where the law is interpreted. Within our
constitutional system, such interpretation must occur within the confines of
constitutional and statutory law and common law precedent. Law must also,
however, be responsive to the facts of each case and make determinations
based on strong competing arguments. Particularly in matters involving
discretion (often the most contested matters), judging, of necessity, involves
drawing on human experience. What, then, might replace the “view from
nowhere” as a foundational basis for notions of impartiality and fair
decision-making?
B. Moving from Transcendental Impartiality to Inclusive Impartiality to
Change the Narrative and Improve Justice in Practice
In contrast to Rawls’s “view from nowhere” are theories of justice that
build upon the importance of procedural fairness—the notion that each
person should be treated fairly and equally—while incorporating the realities
of social difference and of structural inequality.268 In dealing more directly
with difference, inequality, and the possibility of more than one “just”
principle or outcome, these theories of justice speak to a framework that may
be helpful to the tasks of judging and judicial selection.269
For example, Amartya Sen parts with Rawls on the notion of impartiality
as requiring a “view from nowhere.”270 Sen argues the need to acknowledge
that in many circumstances in which a dispute arises, there can be more than
one just result.271 Even where the law the favors one approach to resolving
a particular dispute over others, Sen’s position is that consideration of a
broad range of perspectives on possible just outcomes—what might be
called a “view from everywhere”—goes farther toward achieving justice as
a practical matter than does seeking to construct a “view from nowhere.”272
As Sen notes, “[c]hanging places has been one way to ‘see’ hidden things in
the world . . . . The need to transcend the limitations of positional
Republican Party of Minn. v. White, 536, U.S. 765, 778 (2002).

267
Id.
268
SEN, supra note 24, at 43.
269
Id.
270
Id. at 169.
271
Id. at 182–83.
272
Id. at 155.
perspectives is important in moral and political philosophy, and in

jurisprudence.”273
Sen calls into question Rawls’s “original position”274 based on the
necessary emergence of a “unique set of principles of justice.”275 Noting the
practical difficulty in getting unanimous agreement on one set of principles
that would form the original position, Sen questions the viability of this
foundational aspect of Rawls’s theory of justice.276 “If institutions have to
be set up on the basis of a unique set of principles of justice emanating from
the exercise of fairness, through the original position, then the absence of
such a unique emergence cannot but hit at the very root of the theory.”277
Sen credits Rawls’s original theory with helping to develop an
understanding of various aspects of justice but concludes that the problem
of “getting unanimous agreement on one set of principles of justice in the
original position” raises a central problem with the theory.278
273
Id. Sen provides an example of potential for positionality to support entrenched
biases:
The hold of positional perspectives can have an important role in making

it hard for people to transcend their positionally limited visions. For
example, in a society that has a long-established tradition of relegating
women to a subordinate position, the cultural norm of focusing on some
alleged features of women’s supposed inferiority may be so strong that it
may require considerable independence of mind to interpret those
features differently. If there are, for instance, very few women scientists
in a society that does not encourage women to study science, the observed
feature of the paucity of successful women scientists may itself serve as
a barrier to understanding that women may be really just as good at
science, and that even with the same native talents and aptitudes to pursue
the subject, women may rarely excel in science precisely because of a
lack of opportunity or encouragement to undertake the appropriate
education.
Id. at 161–62.
274
Sen notes that Rawls himself qualified his articulation of the original position in a
Theory of Justice in his later work, Justice as Fairness: A Restatement, noting the possibility
of alternative conceptions of justice. Id. at 58.
275
Id.
276
Id.
277
Id. at 58.
278
Id.
Sen also questions the contractarian basis for Rawls’s theory of justice
that considers “what ‘social contract’ would be accepted by everyone
unanimously in the original position[.]”279 Sen compares Rawls’s approach
to Adam Smith’s device of an “impartial spectator” as a mechanism for
basing judgments of justice on demands of fairness.280 Sen notes that
Smith’s impartial spectator allows for comparative assessment rather than
identifying a single transcendental solution, permits taking note of social
realizations rather than just institutions and rules, and “taking note of voices
beyond the membership of the contractarian group.”281 Related to this last
point, Sen goes on to ask “[c]an there be a satisfactory understanding of
ethics in general and of justice in particular that confines its attention to some
people and not others, presuming—if only implicitly—that some people are
relevant while others simply are not?”282 Sen considers selective inclusion
to be a form of bias and takes the view that “universality of inclusion” is “an
integral part of impartiality.”283
In discussing impartiality, Sen describes Rawls’s approach as “closed
impartiality” involving only those citizens of a given political community.284
As a contrast, Sen offers the notion of “open impartiality,” a procedure that
invokes “disinterested judgments of ‘any fair and impartial spectator’ not
necessarily (indeed sometimes ideally not) belonging to the focal group.”285
Sen relates the notion of “closed” versus “open” impartiality to the
shortcomings of Rawls’s original position.286 A key limitation Sen identifies
with Rawls’s original position is “exclusionary neglect.”287 “Closed
impartiality can exclude the voice of people who do not belong to the focal
group, but whose lives are affected by the decisions of that group.”288 While
Sen here is referring to open impartiality as applied from a global
perspective, the point applies as well to a single society in which certain
communities are explicitly or implicitly excluded from the focal group.289
279
Id. at 69.
280
Id. at 70.
281
Id.
282
Id. at 117.
283
Id.
284
Id. at 123.
285
Id.
286
Id.
287
Id. at 138.
288
Id. at 138–39.
289
Id. at 140–43.
“The liberating role of open impartiality allows different types of

unprejudiced and unbiased perspectives to be brought into consideration,
and encourages us to benefit from the insights that come from differently
situated impartial spectators.”290
Sen also draws a relationship to an understanding of democracy as
involving inclusive public reasoning and the idea of justice.291
The crucial role of public reasoning in the practice of
democracy makes the entire subject of democracy relate
closely with . . . justice. If the demands of justice can be
assessed only with the help of public reasoning, and if
public reasoning is constitutively related to the idea of
democracy, then there is an intimate connection between
justice and democracy with shared discursive features.292
In characterizing democracy as “government by discussion,” Sen notes the
importance to democracy of not only free and fair elections, but also free
speech, access to information, and freedom of dissent.293 These ideas relate
to the notion of democracy as leaving an open space for the consideration of
various perspectives in deliberations about governance.294 The relationship
between democracy and justice raises the difficulty of protecting minority
rights while heeding the commands of majority rule.295 Sen notes the
importance of inclusive and interactive political processes in reducing
290
Id. at 144. Sen also identifies “inclusionary incoherence and focal group plasticity”
as limitations of closed impartiality. Id. at 145. By these, he means that, however the focal
group is constructed, there is the likelihood that it will not include all those who stand to be
affected by decisions made under the social contract and that even if it did, the ever-changing
nature of populations or “plasticity” of the focal group would hamper effective inclusion of
all members of the intended focal group. Id. The idea of representation from behind the veil
of ignorance does not solve this problem for Sen. Id. at 146–48. This is because under
Rawls’s formulation, the focal group is to involve people who are parties to the original
contract. Id. at 147–48. Another critique of closed impartiality relates to parochialism. Id.
at 149. Sen argues that “closed impartiality” confines the idea and principles of justice to the
particular perspectives and prejudices of a local group, which creates difficulties for
establishing more universal notions of justice. Id. at 150.
291
Id. at 326.
292
Id.
293
Id.
294
Id. at 326–27.
295
Id. at 352.
group-based hostility and violence.296 There is a relationship here to the

imperative of a notion of justice that is inclusive of a range of
perspectives.297 However, Sen does not elaborate on the importance of
inclusion to the consideration of minority perspectives in achieving just
results in this particular context. Instead, Sen seems to approach this
concern from the perspective of focusing on the achievement of just
outcomes as opposed to a focus on establishing perfectly just institutions.298
There is a strong case . . . for replacing what I have been
calling transcendental institutionalism—that underlies most
of the mainstream approaches to justice in contemporary
political philosophy, including John Rawls’s theory of
justice as fairness—by focusing questions of justice, first,
on assessments of social realizations, that is, on what
actually happens (rather than merely on the appraisal of
institutions and arrangements); and second, on comparative
issues of enhancement of justice (rather than trying to
identify perfectly just arrangements).299
C. Moving Beyond Detached Procedural Justice to Substantive Justice
That Acknowledges and Responds to Structural Injustice
Iris Marion Young similarly takes issue with a moral theory of justice
grounded in an ideal of impartiality that imagines a transcendental “view
from nowhere” as its starting point.300 She objects to this conception of
impartiality because it denies and represses difference, ignores social reality,
and masks the imposition of a dominant point of view:
296
Id.
297
See id. at 352–53.
298
Id. at 411–12.
299
Id. at 410. Sen’s focus on issues of global justice and on replacing a contractarian
notion of justice as arising from an original position that identifies particular principles of
justice with “open impartiality” that considers various possible just outcomes, distances his
discussion somewhat from the notion of inclusion of various perspectives in the task of
judging in the United States justice system. Nonetheless, Sen’s presentation of an alternative
notion of impartiality that opposes the necessity of a “view from nowhere” provides an
important counter-notion of impartiality that is useful to a discussion of how we might assess
impartiality in a manner that gets out of the “colorblind” box of placing neutral form above
the task of considering and achieving substantive justice.
300
YOUNG, supra note 210, at 100.
[t]he stances of detachment and dispassion that supposedly

produce impartiality are attained only by abstracting from
the particularities of situation, feeling, affiliation, and point
of view. These particularities still operate, however, in the
actual context of action . . . . It is, moreover, an impossible
ideal, because the particularities of context and affiliation
cannot and should not be removed from moral reasoning.
Finally, the ideal of impartiality services ideological
functions. It masks the ways in which the particular
perspectives of dominant groups claim universality, and
helps justify hierarchical decisionmaking structures.301
Instead of imagining or constructing a notion of impartiality that is based
on a fictional “view from nowhere,” Young supports an inclusive, discourse-
based effort to achieve fairness.
A “moral point of view” arises not from a lonely self-
legislating reason, but from the concrete encounter with
others, who demand that their needs, desires, and
perspectives be recognized. As I have argued, the theory of
impartiality assumes a monologic moral reason, a single
subject attempting to get out of its myopic point of view. If
one assumes instead that moral reason is dialogic, the
product of discussion among differently situated subjects all
of whom desire recognition and acknowledgement from the
others, then there is no need for a universal point of view to
pull people out of egoism. A selfish person who refuses to
listen to the expression of the needs of others will not
himself be listened to.302
Thus, Young envisions the work of seeking fairness and impartiality as
engaging multiple perspectives in a considered and respectful dialogue.303
Instead of seeking a single universal general point of view, Young argues
for a notion of “[u]niversality in the sense of the participation and inclusion
of everyone in moral and social life . . . .”304
301
Id. at 97.
302
Id. at 106 (citation omitted).
303
See id.
304
Id. at 105.
Young, like Sen, also considers as necessary to justice moving beyond

procedural justice to give attention to what actually happens.305 She notes
the impact of structural injustice on the practical reality of going through a
procedurally neutral justice system.306 In her view, pretending that just
institutions—those that are objectively or procedurally just—will address
entrenched problems of inequality misses the practical impact of structural
injustice:
[s]tructural injustice . . . exists when social processes
put large groups of persons under systematic threat of
domination or deprivation of the means to develop and
exercise their capacities, at the same time that these
processes enable others to dominate or to have a wide range
of opportunities for developing and exercising capacities
available to them. Structural injustice is a kind of moral
wrong distinct from the wrongful action of an individual
agent or the repressive policies of a state. Structural
injustice occurs as a consequence of many individuals and
institutions acting to pursue their particular goals and
interests for the most part within the limits of accepted rules
and norms.307
Neutral procedures may be injustice-reinforcing if they fail to take into
account the practical and experiential realities of structural injustice. The
problem is how to introduce substantive even-handedness in a
structurally-unjust society in a manner that neither reinforces existing
structural injustice nor erects new structures of injustice. Part of that project
must involve including among those who dispense justice people who have
a practical, experiential sense of how structural injustice can operate in a
nominally neutral institution. In Responsibility for Justice, Young also gives
attention to the need to avoid getting caught in looking backward and
assigning blame when seeking to address structural injustice.308 She sees the
ascribing of blame as unnecessary and counter-productive in the context of
305
IRIS MARION YOUNG, RESPONSIBILITY FOR JUSTICE 52 (2011).
306
See id.
307
Id.
308
See id. at 95, 108.
seeking to improve justice.309 At the same time, she notes the importance of
assigning broad societal responsibility for improving justice.310
Much work has been done around questions of procedural versus
substantive justice311 and around both the fiction of neutrality and the
necessity of neutrality to achieve just results. Less attention, it seems, is
given to explicitly connecting foundational theories of justice to the practice
of judging and judicial selection. Of course, such theories are embedded
implicitly in discussions about judicial selection and in ongoing debates
about the election versus appointment of state court judges and the
problematic nature of the federal judicial confirmation process. However,
the debate seems most often tied to ideology and to the majoritarian and
counter-majoritarian difficulty rather than to issues of structural injustice
evident in the socioeconomic demographics of winners and losers in the
justice system overall.
D. The Value of Inclusive Theories of Justice to Judging and Judicial
Selection
The inclusion of members of historically marginalized and subordinated
groups on the bench is an important component in achieving greater
substantive justice.312 The inclusion of multiple perspectives on possible
just outcomes promises to do more to improve justice than the pretense of a
“view from nowhere.” The ability of the judge to “see” structural injustice
even when bathing in a sea of procedural fairness adds an important
dimension to judging.313 The addition of marginalized voices to
deliberations where currently there is largely silence from all but a few
dominant perspectives also supports the project of substantive justice.314
309
See id. at 109.
310
See id. at 109–10.
311
See id. at 52–53; see also Nancy Ehrenreich, Foreword: Conceptualizing Substantive
Justice, 13 J. GENDER RACE & JUST. 533, 535 (2010).
312
There are, of course, limits to this notion given that most people eligible to serve on
the bench have significantly overcome marginalization and subordination. However, part of
the overall project of improving justice includes providing opportunity for social
advancement that will support broader eligibility for leadership.
313
SEN, supra note at 24, 155–56.
314
Discourse theory supports this view, as does empirical work noting the effect of a
homogenous bench in silencing even the consideration of alternative perspectives and the
movement toward more moderate (and often fairer) outcomes in certain cases when people
with multiple perspectives are included judicial deliberation. See SUNSTEIN ET AL., supra note
Toward this end, the articulation of theories of justice that embrace a

notion of impartiality that seeks an inclusive understanding that
approximates a “view from everywhere” as opposed to imagining a “view
from nowhere” may provide a framework of fairness and justice that is more
inclusive and that eliminates a perceived divide between diversity and
impartiality. In addition, fostering notions of inclusive impartiality in
support of judicial selection and judicial decision-making promises to have
a more positive impact on the delivery of justice overall.
VI. CONCLUSION
Diversity and particularly the inclusion of members of historically
marginalized groups are of central importance in judicial selection.
Identifying embedded notions of impartiality and fairness that imagine a
“view from nowhere” as a requirement of justice and offering a contrasting
notion of justice and impartiality that involves an inclusive view from
everywhere may help those in the process of judicial selection reconsider
assumptions about judging and judicial selection. Understanding the
pervasiveness of legal ambiguity and that judges’ experiences as well as
their credentials influence how they decide cases, makes it imperative that
the process of judicial selection have as a central consideration diverse
representation on the bench. This is particularly true with respect to race,
gender and class. If the goal is to provide justice to litigants who represent
a broad spectrum of backgrounds and experiences, every effort must be
made to construct a judiciary that is inclusive and represents the diversity of
backgrounds of the litigants who come before the bench.
The imperative of diversity from the perspective of improving justice
must focus on inclusion of members of traditionally underrepresented,
marginalized and silenced groups. To establish a system of justice that
makes strides toward a broader notion of “we,” diversity in judicial selection
must be a central consideration. Acknowledging the true role judges play as
well as the existence of multiple “just” positions on many issues, allows a
more realistic frame from which to consider impartiality. Impartiality may
thus be understood as an open-minded view from everywhere rather than a
transcendental “view from nowhere.” Impartiality understood in this way
opens judging to fairer and more just applications of law to fact, particularly
in matters involving discretion and legal ambiguity. Fostering inclusion
provides a greater opportunity to improve aggregate justice in the manner
13, at 138–40; see also JÜRGEN HABERMAS, BETWEEN FACTS AND NORMS: CONTRIBUTIONS TO
A DISCOURSE THEORY OF LAW AND DEMOCRACY 42–43 (1996).
identified in Sen’s Idea of Justice and in Young’s notions of justice as related

to difference.
Identifying theories of justice that form the basis for traditional notions
of procedural justice and judicial impartiality, may help move the discourse
forward. Alternative theories of justice that envision a more inclusive ideal
of impartiality may provide support for efforts to improve diversity,
inclusion, and substantive justice as a practical matter.

Judicial Selection Diversity Discretion Inclusion and The Idea of Justice

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Judicial Selection Diversity Discretion Inclusion and The Idea of Justice

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JUDICIAL SELECTION: DIVERSITY, DISCRETION,

INCLUSION, AND THE IDEA OF JUSTICE

Improving the “diversity”13 of the bench often has been discussed as a

court systems, that goal remained stubbornly elusive.21 Improving judicial

presidents. Until now, however, they too evidenced a trend

which people of color are at least a quarter of the

C. The Judicial Diversity Dilemma—Why Is Such an Important Goal So

Organizations from the American Bar Association46, to the Conference of

drafting of this article, federal judicial confirmations are taking place at

(Mar. 21, 2018), https://www.dailydot.com/irl/trump-us-district-court-nominee-gay-

phenomenon “racial exhaustion,”53 “pluralism anxiety,”54 a preference for

President Trump considers minority status to be a potential

neutrality and impartiality forms a foundation of much thinking about what

drawing on experience in deciding matters that require judgment or

the value of diversity and inclusion to judicial decision-making. At the same

I will not vote for—and no Senator should vote for—an individual

Confirmation Hearing on the Nomination of Hon. Sonia Sotomayor, to be an Associate

Several Senators noted how proud we all should be as Americans of Justice

confirmation hearing, Sotomayor emphasized “fidelity to the law” moving

I am who I am in the first place because of my parents and because

Confirmation Hearing on the Nomination of Samuel A. Alito, Jr. to be an Associate Justice

confirmation process, questions repeatedly were raised about whether

on fairness of the almost exclusively white, male make-up of the Supreme

margins. Thomas, a black man, represented an ideological view opposite of

ability to be impartial on the bench.125 Nonetheless, few if any questions

This whole two-week effort has been a calculated and orchestrated

narratives appear in response to diversity efforts in federal and state court

Judges are not politicians who can promise to do certain things in

inclusion of various perspectives as part of the project of improving justice

Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a “short

Recognizing the existence of fairly broad judicial discretion raises a

the “politicians in robes” characterization is challenging given the fact of

Sustaining the expectation that judges behave as much more than

Given the enduring power of our socially constructed racial

Given the general rejection of traditional formalist views of judges as

statutes . . . [t]rain Commissioners to be effective recruiters and

and human experience, there is a need to hold on to Lady Justice as a goal

impartiality that frame diversity efforts as somehow contrary to justice,

perspectives serves to improve the quality of justice in the broadest sense.210

Rawls sought to modify classic liberalism to include social issues, such

detached creation of just institutions, justice is better achieved within a

it is simply not possible for flesh-and-blood decisionmakers, whether in

Id. at 114. She goes on to note that

[t]he myth of the neutral state serves an ideological function insofar

Young’s work focuses on the limits of a traditional transcendental,

“dispensed” by an authority, and that this authority is impartial. Most

ignorance of particular characteristics, social situations, or experiences.224 It

The central mechanism of the contractarian argument is agreement.

normal range. We express these limits on information

Here, Rawls does not take on the relationship between discrimination as a

democratic institutions in the United States.237 It is very closely linked with

privilege.244 When we look at the demographics of power in the United

Moreover, in his later work, Justice as Fairness: A Restatement, Rawls

The “view from nowhere” appears to resonate strongly with arguments

Current scholarship . . . makes it clear that election returns—

(sometimes legal scholarship!), and even craft and imagination play

A . . . possible meaning of “impartiality” (again not a common one)

As noted above, confirmation debates regularly raise issues of ideology,

Republican Party of Minn. v. White, 536, U.S. 765, 778 (2002).

perspectives is important in moral and political philosophy, and in

The hold of positional perspectives can have an important role in making

“The liberating role of open impartiality allows different types of

group-based hostility and violence.296 There is a relationship here to the