As an African-American and a woman, Louisiana Chief Justice Bernette Joshua Johnson stands out on a state Supreme Court that is otherwise stocked with six white men.
In a report released last week, researchers at Tulane University quantified what they call the “gavel gap,” a phrase that captures women's and minorities’ under-representation on the state bench.
The researchers found that Johnson's situation is more the rule than the exception throughout Louisiana, where state and local judges are all elected by voters. In nearly every parish, women and minorities preside over cases at numbers lower than their share of the general population.
At the federal level, where judges are appointed, the gavel gap appears to be growing under President Donald Trump. Since taking office he has nominated six white men and one Asian man to the federal courts in Louisiana, according to the report. A white woman, Wendy Vitter, was nominated after the report was compiled.
The sole exception to Louisiana’s mostly white and male bench is Orleans Parish, without which the state’s racial and gender disparity would be much greater.
The report from Tulane University’s Newcomb College Institute, written by professors Heather Johnson and Sally Kenney, shows that women and minorities are under-represented in almost every court in Louisiana.
Although women make up 51 percent of the state’s population, they make up only 32 percent of its state and federal judges.
Racial minorities represent 36 percent of the state’s population but only 23 percent of the judges. That number has barely changed in a quarter of a century, according to historical data collected in the report. Non-white judges held 23 percent of the district court spots in 1992. That number had ticked up a single percentage point by 2017.
Out of forty-two state district courts in Louisiana, only six have had black women as judges and only 13 have seen black men as judges.
The state Supreme Court is a laggard in diversity. State courts of appeal, judicial district courts and city and parish courts all see somewhere between 31 percent and 40 percent participation by female judges. They have between 23 percent and 25 percent non-white judges.
The federal courts also lack diversity. Only 17 percent of the judges on the 5th U.S. Circuit Court of Appeals are non-white, and only 15 percent of the judges in the New Orleans-based Eastern District of Louisiana are non-white. Women make up 24 percent of the appeals court and 43 percent of the district court bench.
At the state level, the major outlier in Louisiana is New Orleans. The city elected its first black Criminal District Court judge in modern times, Israel M. Augustine, in 1970 and has carried on a tradition of picking black jurists ever since.
Orleans Parish now has the most diverse bench in the state, according to the report. Women accounted for 77 percent of Civil District Court judges, 46 percent of Criminal District Court judges, 80 percent of Juvenile Court judges and 36 percent of city judges in 2017.
Non-white judges made up 85 percent of the civil bench, 62 percent of the criminal bench, 80 percent of the juvenile bench and 64 percent of the city courts' bench in 2017, the report says.
Jefferson Parish’s courts are less diverse than those in New Orleans, with 36 percent of judgeships held by women and 28 percent by non-whites. Those numbers have not changed substantially in 25 years. Johnson, the Tulane professor, said that over that period, 18 of the 25 positions in the parish have always been held by a white judge and 13 have always been held by a man.
Surprisingly, New Orleans' diversity is enough to make Louisiana the 17th most representative state for women and non-whites on the bench, according to a separate study conducted by the American Constitution Society.
The new report does not delve into the reasons why women and minorities preside over trials at numbers lower than their share in the general population, or on how that fact might affect cases’ outcomes.
However, the authors do suggest that the state should take steps to make sure that more women and non-whites sit on the bench.
The Tulane report says there is little evidence showing that a diverse judiciary leads to different outcomes in cases. Still, Johnson sees a value in electing more women and non-whites.
“We want a representative bench for credibility,” she said. “It’s the appearance of equity as well as a signal.”
Johnson said there are a number of steps the state can take to improve diversity under the robes, from educating voters about the life-and-death decisions judges make to recruiting more female and minority candidates.
“We need to actively recruit women and non-white men,” she said. “We need to demystify the path to the bench.”
Johnson predicted that more women could run for judgeships in the near future, motivated by everything from the first major-party woman presidential candidate to the recent outcry against sexual harassment and assaults.
“I think we’re going to see more women candidates enter the field during the next election cycle for a whole host of reasons,” she said.