Ava Morgenstern wrote “Judicial Diversity in North American and European Asylum Court Systems: A Literature Review” as part of the 2014 Humanity in Action Diplomacy and Diversity Fellowship. The research essay was first published in Transatlantic Perspectives on Diplomacy and Diversity (Humanity in Action Press 2015). The complete book is available for purchase on Amazon.
While these courts vary widely according to their countries’ legal systems, they all share as a common feature a high number of white male judges hearing the cases of mostly non-white claimants.
This article explores the connection between judges’ race and gender and their decisions in asylum and refugee courts in North America and Europe. While these courts vary widely according to their countries’ legal systems, they all share as a common feature a high number of white male judges hearing the cases of mostly non-white claimants. The author reviews arguments against and for the promotion of judicial diversity, particularly the symbolic and practical benefits posed by its advocates. Next is a summary of cross-national empirical research on the impact of race and gender on judging. While such research on refugee and asylum courts in particular is limited, the most relevant results indicate that women judges are more likely than their male colleagues to approve asylum requests. The author emphasizes the potential value of diversity in asylum judiciaries, concluding with recommendations for further research to better understand the effect of judicial diversity on refugee and asylum law cross-nationally, policy ideas to enhance diversity and implications of judicial diversity for human rights law more broadly.
Does judicial diversity matter in international human rights law? This link is understudied but important to explore.
This relationship between judicial diversity and asylum cases may have broader implications for other areas of international human rights law.
Diversity matters in many countries’ judiciaries. Multiple facets of diversity among judges (1) – especially gender and race (2) – often affect decisions. Diversity does not guarantee specific outcomes. However, opposed to a less diverse judiciary of mainly white men, the presence of women and minorities may bring important benefits. A more diverse judiciary may be more socially representative and thus more accepted as legitimate by heterogeneous populations. Arguably, diversity also tangibly impacts decision making. Women and minority judges might sometimes have different perspectives from white male judges, and might be able to better consider the nuances of some cases involving gender and race.
For asylum cases specifically, gender and racial diversity might be relevant, but more cross-national research is needed. This relationship between judicial diversity and asylum cases may have broader implications for other areas of international human rights law.
Some women and minority judges might help to improve the atmosphere and process for some refugees and asylum claimants.
In this article, I will explore the connection between judicial diversity and asylum and refugee law. First I will explain why refugee law is important as part of international human rights law, since most countries participate at least minimally in this system that strives to protect people at risk of persecution. Switching gears, I will then address why diversity, especially of race and gender, is relevant for the system of law in general and for the judiciary in particular. This section will include several parts. I will summarize available data on diversity in the courts of several countries in North America and Europe. I will review arguments for and against a specific attention to promoting judicial diversity. The difference between these arguments hinges on whether law can or cannot be understood independently of social forces such as judges’ demographic characteristics and life experiences. Focusing on the favorable arguments for diversity, I will then consider the symbolic and practical benefits of diversity. An explanation of recent debates about racial and gender diversity on the United States Supreme Court will illustrate this discussion.
Next, I will review cross-national empirical research on whether women and minorities make a difference in judging. Most available research is from North America and focuses on cases other than immigration and asylum law, though a few studies have treated the latter and have found some effects of gender, in addition to other characteristics. Women judges, especially those with professional experience outside the government and in women’s rights issues, are more likely than male judges to approve asylum requests.
Due to the overrepresentation of white males in judiciaries, including those for immigration, asylum and refugee law, I will emphasize the potential value of diversity in asylum law. Some women and minority judges might help to improve the atmosphere and process for some refugees and asylum claimants. At the same time, due to limited research, we know little about the impact of underrepresented judges in asylum systems across countries. Furthermore we cannot rely on stereotypes to predict how women or minorities judge.
I will conclude with several points. I will make suggestions as to where more research is needed to better understand the effect of judicial diversity on refugee and asylum law cross-nationally. Additionally I will summarize policy ideas for improving judicial diversity. Finally, I will consider implications of judicial diversity for human rights law more broadly, such as in international courts.
Why Asylum Law?
There are 144 parties to the 1951 Convention Relating to the Status of Refugees, and 145 parties to the 1967 Optional Protocol Relating to the Status of Refugees. (6)
Asylum and refugee (3) law is an essential component of international human rights law. As Erika Feller, Director of the Department of International Protection at the United Nations High Commissioner for Refugees (UNHCR) states, “Refugee protection is a human rights issue, rather than principally an act of charity at the discretion of States”. (4) When a government is unable or unwilling to protect a person’s human rights, she or he has the human right to seek protection in another country, as stated in the Universal Declaration of Human Rights (Article 14(1)). (5)
Many countries participate at least minimally in the refugee system, which strives to protect people at risk of persecution if they were to stay in their own countries. About two out of every three countries have endorsed the specific United Nations (UN) instruments for refugee protection, taking on important legal responsibilities. There are 144 parties to the 1951 Convention Relating to the Status of Refugees, and 145 parties to the 1967 Optional Protocol Relating to the Status of Refugees. (6)
The 1951 Convention (Article A(2)) defines a refugee as a person with a
“well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, [who] is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.” (7)
The 1951 Convention also includes the principle of non-refoulement (that any refugee may not be forcibly returned to a country in which she or he may face persecution as defined above), as well as basic rights that receiving countries must grant to refugees depending on how long they have been in the country. (8) Some regional instruments in the European Union, Africa and Latin America also reflect and in some cases extend international refugee law as a result of recent displacements since the 1967 protocol. (9)
it is up to the individual state parties to determine refugee status and to implement asylum proceedings. (10)
While the UN and regional instruments set out broad principles, such as the definition and basic rights of a refugee, it is up to the individual state parties to determine refugee status and to implement asylum proceedings. (10) The form of refugee law varies once encoded within specific countries’ domestic legislation (for details in the European Union and United States, see European Commission and Human Rights First). (11) Yet however a country’s system is structured, when the country assesses individuals’ claims, “any procedures must be fair and efficient.” (12)
Many obstacles, however, stand in the way of full implementation of the UN conventions. The number of refugees has grown significantly since the era of the Convention and Protocol, which responded to the Second World War and decolonization; now ethnic conflicts are a major producer of refugees. In 1951 UNHCR was tasked with helping resettle one million people displaced by the war. In contrast, as of 2013, there are now over 10 million refugees “of concern” to UNHCR worldwide, in addition to over four million Palestinian refugees attended by the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA). (13)
Such restrictiveness dodges the responsibilities of receiving countries under international law, including the critical principle of non-refoulement. (14)
Due to this rise in numbers, since the 1980s receiving countries have become much more restrictive in interpreting refugee law. Receiving countries variously prevent many refugees from entering, hold refugees in detention centers, minimize access to the procedures to claim refugee status, narrow the definition of a refugee, blame refugees for cheating the system and limit the rights to work and public benefits of those who do stay. Such restrictiveness dodges the responsibilities of receiving countries under international law, including the critical principle of non-refoulement. (14)
Several current issues, as of this writing, illustrate these trends. In the US since 2011, a sharply increasing number of unaccompanied minors (from about 5,000 in fiscal year 2009 to about 36,000 in fiscal year 2013) from Guatemala, El Salvador and Honduras have arrived at the southern US border via dangerous routes through Central America and Mexico. The children are fleeing poverty and violence, especially from gangs, drug cartels and state actors. UNHCR believes that many of these children are in need of international protection and may have a valid asylum claim in the US. Nevertheless, the situation has been extremely difficult for these children, who are often held in detention centers, or who enter immigration court hearings with no lawyers. Some have already been deported back to their countries of origin in which they may face danger. (15)
In just the first half of 2014, about 75,000 refugees and migrants arrived on boats, and about 800 are estimated to have died at sea – all sharp increases over subsequent years.
Meanwhile in the EU, the number of asylum seekers has risen significantly since 2012 due to people escaping violence from countries including Syria, Eritrea, Afghanistan and Somalia. Authorities at the borders often try to prevent entry, in violation of international law by which asylum seekers are entitled to seek protection. The EU also works with neighboring countries to try to block migrants’ entrance to the EU and to return some arrivals more easily. Consequently, some asylum seekers attempt first to enter Italy, Greece, Spain or Malta on overcrowded boats. In just the first half of 2014, about 75,000 refugees and migrants arrived on boats, and about 800 are estimated to have died at sea – all sharp increases over subsequent years. Those who are nevertheless able to enter still face obstacles: often, being held in detention centers, facing barriers to making asylum claims and waiting long periods for asylum cases to be processed. (16)
All refugee and asylum systems could be improved toward the “fair and efficient” goal expressed by UNHCR. (17) While there are many possibilities for improving asylum systems, judicial diversity might be one method (though insufficient on its own) toward achieving this goal. If judicial diversity improved the quality of the decision-making process for the claims of refugees and asylum makers, they might have a better chance of having their claims heard more fairly. The rest of this paper will elaborate on this idea.
Furthermore, we can study the effect of judicial diversity on human rights within asylum and refugee systems, more clearly than in international human rights courts, simply because there exists more research on domestic judiciaries than international ones. (18) Thus, exploring the effect of judicial diversity in this area of law might help us understand its implications not only for refugees and asylum seekers, but in human rights law more broadly.
Rather than emphasizing diversity, Barack Obama has stated that he considers nominating judges with, among other traits, “empathy” or “a keen understanding of how the law affects the daily lives of the American people.”
Why does judicial diversity matter for law? I will illustrate this issue with regard to the US Supreme Court and provide background on selected countries’ judicial diversity before examining the issue more thoroughly in subsequent sections.
The US Supreme Court periodically captures the country’s attention with debates over the value of diversity in the judiciary. (19) The court has changed substantially from its history of featuring only white men until 1967, with the appointment of Thurgood Marshall as the first African-American justice. The current membership of the court as of 2014 contains only a slight majority of white men (five out of nine: John Roberts, Samuel Alito, Stephen Breyer, Anthony Kennedy, Antonin Scalia) in addition to a Latina woman (Sonia Sotomayor), an African-American man (Clarence Thomas) and two white women (Ruth Bader Ginsburg, Elana Kagan). Democratic presidents in particular have factored racial and gender diversity considerations into their judicial nominations, although Republican presidents occasionally have done the same when trying to court female and minority voters. (20) At the same time, the use of such criteria is controversial. Rather than emphasizing diversity, Barack Obama has stated that he considers nominating judges with, among other traits, “empathy” or “a keen understanding of how the law affects the daily lives of the American people.” Obama’s motivation may be to back away from his Democratic predecessors’ explicitly-stated diversity considerations in nominations, while still naming women and minority candidates to the Supreme Court and lower federal courts. (21)
Two high-profile events in recent Supreme Court history represent divergent positions on whether judicial diversity should be considered in nominations. The first was the nomination of Clarence Thomas in 1991, the second that of Sonia Sotomayor in 2009. In the history of the Supreme Court, Thomas is the second African-American male justice and Sotomayor the first Latina female justice. Yet despite their historic presence on the Court, both have quite different opinions on the value of judicial diversity.
He recognizes the “underlying concerns and feelings about people being left out, about our society not addressing all the problems of people.”
Clarence Thomas in his 1991 confirmation hearings described his judicial style:
“I think it`s important for judges not to have… baggage. I think… it is important for us… to eliminate agendas, to eliminate ideologies. And when one becomes a judge… you start putting the speeches away. You start putting the policy statements away. You begin to decline forming opinions in important areas that could come before your court because you want to be stripped down like a runner. So I have no agenda.” (22)
In fact, Thomas’ life experience has shaped his views in complex ways. He has commented on the obstacles that poverty and racial discrimination have created in his own life, as the grandson of sharecroppers. He has said he recognizes the “underlying concerns and feelings about people being left out, about our society not addressing all the problems of people.” (23) On the other hand, he has clashed with liberal groups on his opposition to affirmative action, stating,
“I would hope 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.” (26)
“When blacks take positions in the highest places of government, industry, or academia, it is an open question today whether their skin color played a part in their advancement. The question itself is the stigma – because either racial discrimination [Thomas’ term for affirmative action] did play a role, in which case the person may be deemed ‘otherwise unqualified,’ or it did not, in which case asking the question itself unfairly marks those blacks who would succeed without discrimination.” (24)
Sonia Sotomayor holds a different assessment of diversity. Like Thomas, Sotomayor has emphasized the role that her background plays in her judicial perspective – in her case, her working-class New York Puerto Rican upbringing. But unlike Thomas, Sotomayor has supported affirmative action and proactive efforts to increase judicial diversity. She has defended affirmative action as important for her own educational success as well as for the quality of judging in general. (25) In 2001, she gave a speech supporting more representation of women and minorities in the judiciary. Arguing for the importance of a judge’s race and gender in shaping perspective, Sotomayor said, “I would hope 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.” (26)
Sotomayor’s statement became famous during her 2009 Supreme Court confirmation hearings, causing controversy with conservatives. For instance, Republican politician Mike Huckabee commented, “The notion that appellate court decisions are to be interpreted by the ‘feelings’ of the judge is a direct affront of the basic premise of our judicial system that is supposed to apply the law without personal emotion.” (27) In response to the controversy, Sotomayor clarified that she believed a judge ultimately should follow the law, regardless of the influence of personal experience. (28)
In her work on the Supreme Court, Sotomayor has referenced her own experience as a woman of color regarding certain issues such as affirmative action. (29) The differences between Thomas and Sotomayor illustrate two perspectives on judicial diversity. One is that personal experience, at least that explicitly based on minority status, can and should be minimized during judging. Another is that such personal experience is critical and perhaps inevitably shapes judging.
Having given this illustration, I will now summarize some brief information on North American and European countries’ judicial diversity. The details are too numerous to include here, but key themes include:
the judicial selection process “disregards” many women, aboriginals and other racial minorities. (33)
– Gender diversity: Enough data exist for cross-national comparisons of this subject. The major difference between countries’ judiciaries rests on the distinction between two types of national legal cultures: (30)
- Common law countries (including England, Wales, Northern Ireland, Republic of Ireland, Canada, US). In these countries, with a low proportion of female judges, judicial appointment processes tend to favor men. (31) In England and Wales, one critic faults the judicial selection process with a “secrecy” favoring connected insiders and disadvantaging women and minorities, though with recent efforts to improve gender diversity. (32) In Canada, another critic similarly charges that the judicial selection process “disregards” many women, aboriginals and other racial minorities. (33) In the US, judicial appointment processes and elections favor male judges at both state and federal levels. (34) In the US immigration court system, 62% of immigration judges are male and 38% are female as of 2011, though these numbers are an improvement over recent years. (35)
- Civil law countries (including continental Europe). In these countries, judges earn their posts based on academic merit, and judgeships include favorable public-sector working conditions. Consequently these countries have a high proportion of women in the judiciary relative to common law countries. (In France this phenomenon is called the “feminization” of the judiciary). (36) However, even in civil law countries, the highest-prestige judicial positions remain male-dominated. (37)
– Racial diversity: Race is even more complex than gender to study across countries, due to each country’s specific racial demography, in addition to incomplete data. However, the common law/civil law distinction is again useful. In common law countries (US, Canada, England), racial minorities are often underrepresented in the judiciary compared with their share of the general population. Many obstacles hinder judicial advancement of racial minorities, but the situation is similar to how the judicial selection process limits the advancement of women. Meanwhile, civil law countries (such as Germany, France, the Netherlands) lack comprehensive data on this subject, often because laws constrain collecting racial demographic data. The three common law countries mentioned above have had the most discussion and activity to improve racial diversity, as compared to the civil law countries. (38)
Diversity: Normative Considerations
I will review arguments for and against promoting judicial diversity and explain why I argue for diversity. The fundamental distinction between these arguments is about whether law is independent of social forces such as judges’ demographic characteristics and life experiences. If so, diversity is irrelevant; but if not, it is integral.
Some white judges interviewed express disagreement with affirmative action, in part due to their higher regard for “qualifications” (seen as fair and neutral markers of merit) than for diversity considerations in judicial appointments. The “qualifications” (legal expertise and skill) are thought to be independent of demographics.
Arguments against promoting diversity rest on the idea that law is independent of such social forces. (39) The basic US Republican Party arguments against considering diversity in judicial appointments may be summarized as:
“(1) affirmative action hurts, rather than helps, minorities and women [by stigmatizing them as unfairly chosen]; (2) diversity candidates are actually less qualified than non-diversity candidates; and (3) diversity initiatives constitute reverse discrimination, leading to white backlash.” (40)
In this view, law is seen as a system operating independently of social forces such as racism and sexism.
In political scientist Nancy Scherer’s study of US judicial diversity, some white judges interviewed express disagreement with affirmative action, in part due to their higher regard for “qualifications” (seen as fair and neutral markers of merit) than for diversity considerations in judicial appointments. The “qualifications” (legal expertise and skill) are thought to be independent of demographics.
For example, one white female judge expresses a reservation about affirmative action: “There are some [judges] who are chosen for diversity and not qualifications, but that actually diminishes the public’s trust of the courts.” (41) Many interviewees (both for and against affirmative action) also mention the possibility of backlash among white males who are not beneficiaries of affirmative action. One white female judge says she knows colleagues,
He argues that attempts at more-than-minimal consistency in the asylum system would threaten “decisional independence” and thus fundamental inconsistency, which should generally not be compromised. (43)
“including some who have been on the wrong end of identity politics in the appointment process, who are anything but prejudiced. But they do resent being on the wrong end of identity politics….I don’t think you should discriminate against white males to increase diversity.” (42)
Another view skeptical of diversity initiatives is specifically in the area of asylum and refugee law. Legal scholar Stephen H. Legomsky, writing about inconsistency in the US asylum system (due to widely varying decisions depending on specific judges), opposes efforts for substantially more consistency in asylum decisions. Such efforts might include judicial diversity. He opposes increasing judicial diversity if specifically for the purpose of improving asylum decision consistency; he is not necessarily arguing against affirmative action in general. But he argues that attempts at more-than-minimal consistency in the asylum system would threaten “decisional independence” and thus fundamental inconsistency, which should generally not be compromised. (43) “[E]ven if demographic hiring preferences enhanced consistency, they would have affirmative costs. Adjudicators should be appointed on merit. The goal should be to create colleagues, not warring camps.” (44)
Inconsistency in decision making is not a random and neutral phenomenon, but may reflect systemic social patterns.
I disagree with this argument due to Legomsky’s belief in judicial “independence” (from gender and other demographic variables such as professional experience) despite the white male majority in the judiciary. Inconsistency in decision making is not a random and neutral phenomenon, but may reflect systemic social patterns, as I will cover below with regards to the effect of gender on asylum judging. Furthermore, whether diversity promotions produce “warring camps” rather than “colleagues” is not a settled conclusion. Scherer’s 2011 study shows that many women and minorities do support diversity as a consideration in addition to merit, and are still able to serve as colleagues with white male judges.
“Lawyers and legal theorists tend to take legislation as a given, an exogenous and arbitrary datum, which courts must then process… [Whereas] [s]ocial scientists seek to understand the forces that create rules, perpetuate them, and foster change.” (46)
Arguments for promoting diversity see law as intricately shaped by social forces. These arguments are based on a tradition of interdisciplinary legal scholarship, which conceives of law as one institution of many within a society, rather than an insular object free from social influences. (Legal scholar Richard L. Abel disapprovingly describes the latter view: “Americans believe in the slot-machine theory of justice — law as the mechanical application of unambiguous rules to uncontested facts.”) (45) Abel summarizes a difference between mainstream legal scholarship and interdisciplinary legal scholarship: “Lawyers and legal theorists tend to take legislation as a given, an exogenous and arbitrary datum, which courts must then process… [Whereas] [s]ocial scientists seek to understand the forces that create rules, perpetuate them, and foster change.” (46)
Legal scholar Martha Minow writes:
“Justice, in this view, is not abstract, universal, or neutral. Instead, justice is the quality of human engagement with multiple perspectives framed by, but not limited to, the relationships of power in which they are formed… Through deliberate attention to our own partiality, we can begin to acknowledge the dangers of pretended impartiality. By taking difference into account, we can overcome our pretended indifference to difference, and people our worlds with those who can surprise and enrich one another. As we make audible, in official arenas, the struggles over which version of reality will secure power, we disrupt the silence of one perspective, imposed as if universal.” (47)
Many qualities exist within these “multiple perspectives” to which Minow refers. Many legal scholars interested in social influences on law focus on race and gender. For instance, one article about race and the judiciary argues,
“The formalistic conception of the law as objective and certain is closely related to the myth that… a judge is a ‘passionless thinking machine’ akin to a computer. Virtually every legal actor understands that a judge’s biases, perspectives, and life experiences influence judicial decision-making. Not surprisingly, a judge’s racial background shapes her world view and almost inevitably influences her judicial decision-making.” (48)
“Gender is a relevant category for social interaction, and the absence or presence of women may change group dynamics; but that does not mean it does so in fixed, predictable, and static ways.” (49)
Of course, race does not inevitably lead a judge to a particular ideology, as the example of Clarence Thomas has shown. With a similar caveat about gender, one feminist scholar finds that women do not judge predictably, but that judges’ gender is still important to study. Judges’ gender might interact with other variables such as experiences of discrimination, professional background, political views and the gender composition of the courts on which these judges serve. “Gender is a relevant category for social interaction, and the absence or presence of women may change group dynamics; but that does not mean it does so in fixed, predictable, and static ways.” (49) This is both a feminist argument for the importance of women judges, but also a view with attention to the complexity of demographics on judging.
The pro-diversity arguments may be divided into “symbolic” and “practical” ones. (50) In this section, I will mostly focus on symbolic reasons; the next section will address practical or empirical ones.
The public will have more confidence in the legal system if it more accurately reflects the society, at least according to certain identities such as race and gender.
Scherer (who wrote above about anti-diversity arguments) summarizes pro-diversity arguments:
“[US] Democratic [Party] proponents of a judicial appointment strategy designed to increase diversity have relied on three principal justifications: (1) diversity helps remedy past systemic discrimination in the judicial selection process, (2) diversity serves as a symbol for the members of groups that have been historically underrepresented on the bench, and (3) diversity ensures that more voices are heard in the decisionmaking process.” (51)
Points 1 and 2 are more symbolic (social values justify diversity), while Point 3 is more practical (empirical results justify diversity). Point 2 may also be phrased as “social legitimacy” or the representativeness in the legal profession of the population at large. (52) The idea is that the public will have more confidence in the legal system if it more accurately reflects the society, at least according to certain identities such as race and gender.
Scherer’s interviews with female and minority judges uncover these themes. For example, one minority female judge argues for the symbolic value of diversity:
“The courts are supposed to be for the people… and when the community has a certain representation, the bench needs to at least reflect that in some degree because, you know… I think the public deserves that quite honestly. It’s not some bastion of elitism that no one can get to except if you are a white male. So I think it’s important for the community and for what we’re supposed to be here for, which is justice. So it should be for one and for all. So it has to be done by one and all.” (53)
A minority male judge expresses the practical value of diversity:
“I do know that there is a value to having different people at the table… My perspective is it has just got to be better for the decisionmaking process if you have input from different perspectives. I mean, I can’t tell you over the course of my lifetime as a [minority] man in America, how many white guys have said, as we discussed whatever, ‘I never thought of that,’ or ‘I never looked at this simple situation that way.’” (54)
As opposed to the anti-diversity view summarized above, the idea here is that demographics to some degree influence what a judge does (i.e., there are no completely neutral “qualifications” on which to fully assess a judge, due to the legacy of discrimination in the legal system and in society).
Evidence seems to point to the value of a diverse judiciary in improving the quality of decision making.
An additional, minor argument for diversity is that the demographic representation of immigrants in the judiciary is also positive for a country’s image abroad, especially in the places sending immigrants there. (55)
Why do I argue for judicial diversity? First, on a normative level, I agree with the pro-diversity theorists that there exists underrepresentation of women and minority judges caused specifically by social discrimination, and that affirmative action can help to remedy this problem. Second, the evidence seems to point to the value of a diverse judiciary in improving the quality of decision making. The next section considers this idea.
Diversity: Empirical Considerations
Pro-diversity theorists have introduced empirical in addition to normative arguments: the idea that diverse judiciaries produce better outcomes than do homogenous judiciaries. The argument is that non-traditional judges can bring perspectives that improve decision making. Underrepresented judges, both as individuals and on panels, may bring viewpoints different than majority judges and may better represent the interests of their group(s). (56) For instance, minority judges might better understand the experiences of minorities bringing discrimination cases, whereas some white judges might misunderstand or be skeptical of such claims. (57) A broader range of perspectives would aid rather than harm impartiality, such as is already the case with jury selection. (58)
Diversity improves decision making by introducing many perspectives and approaches.
Another empirical argument for diversity comes from outside legal scholarship. Research suggests that in general across professions, work teams that are diverse perform better than those that are not. Cognitive differences among team members can improve the ability of the team to solve problems and perform tasks, as long as all team members are capable of doing the tasks. In fact, diverse teams can even out-perform homogenous teams of highly able people. Diversity improves decision making by introducing many perspectives and approaches. While cognitive diversity is not the same as demographic diversity, the two often overlap, because people with different life experiences bring different perspectives to their work. (59)
There are caveats to the pro-diversity arguments. Diversity is not guaranteed to bring certain outcomes. We need to avoid essentialism, such as assuming that all women judge a certain way. (60) Any judge has a multiplicity of identities, any of which may or may not come into play in her individual decision-making. Additionally, judges’ identities may interact in complex ways when they work with colleagues on panels to decide cases.
Building on this overview of the empirical argument for diversity, I will now review literature on the specific effect of gender and race on judging. Many of these studies are from North America and deal with subjects other than immigration, refugee and asylum law; but they are still informative in general.
First, many studies have asked how gender matters for judging. Data on judges’ gender are somewhat easier to find than data on race, especially cross-nationally. Results are mixed. Some authors find an effect of female judges, whether individually, in panels (groups of judges) or both. Women may judge somewhat differently from men, in cases of sex discrimination, criminal cases and other gender-related cases in which female judges might be favorable to plaintiffs. (61) When these gender-related cases are decided by panels, female judges might also influence male colleagues to favor plaintiffs. (62)
“[f]emale judges grant asylum at a rate that is 44% higher than that of their male colleagues.” (63)
Moving on to asylum law specifically, gender seems to matter quite a bit. In US asylum cases, a seminal study reveals that “[f]emale judges grant asylum at a rate that is 44% higher than that of their male colleagues.” (63) (Ramji-Nogales, Schoenholtz, & Schrag, 2007, page 377). The authors of that study suggest that female judges may bring distinct perspectives favorable to claimants for several reasons. Many female judges report experiences with sex discrimination in their own careers, such that they may be more receptive to claimants’ accounts of persecution. Female judges may take less adversarial stances toward claimants than might male judges. Many women judges also have prior professional experience in nongovernmental capacities (nonprofits, academia or private sector firms), a variable correlated with more favorable outcomes for asylum claimants. More men have professional experience in government and the military, especially in immigration enforcement, positions correlated with less favorable outcomes for claimants. Judges with prior experience in immigration enforcement likely share the state’s perspective, which favors limiting and controlling immigration. (64) As of 2011, 56% of immigration judges have worked in governmental positions “adversarial” to immigrants, and 23% have worked in other governmental positions (compared with 16% in nongovernmental positions and 2% in academic positions). )(65)
The Canadian context is slightly different. In Canadian asylum cases, gender effects exist but are also complex. A judge’s gender alone is not a determining factor; rather, a combination of a female judge, her prior professional experience in women’s rights, a female claimant and a gender persecution claim all combine as factors more favorable to the claimant. (66)
In the international context, a comprehensive study of gender in law cross-nationally finds many perspectives about whether gender matters in judging. That author finds that the empirical evidence about whether women bring a “different” perspective to judging is inconclusive, even for those who may support gender diversity for symbolic reasons. (67)
As of 2011, 56% of immigration judges have worked in governmental positions “adversarial” to immigrants, and 23% have worked in other governmental positions (compared with 16% in nongovernmental positions and 2% in academic positions). )(65)
In addition to gender, race may have some effect on judging. This subject is more difficult to study than gender, however, due to difficulties in obtaining relevant data, especially outside the US, Canada and UK. Several studies in the US demonstrate effects of judges’ race. Whether individually or on panels of other judges, minority judges compared to white judges are more likely to favor minority plaintiffs in Voting Rights Act cases, to support affirmative action and to find police officers guilty of misconduct in certain criminal cases. (68) Black judges in particular may influence white colleagues on panels. (69) In asylum cases specifically, there seems to be no research on the association between judges’ race and decisions.
Furthermore, there may be additional effects when gender and race are combined. For instance, minority female judges compared to other judges are more likely to support defendants in criminal cases. (70)
Women and minorities may help to foster a climate in which this reception is more likely than one in which mostly non-white asylum claimants face a more skeptical white male judge, often predisposed to the government’s restrictionist goals, and with a very different set of life experiences from the claimant.
Finally, although I do not focus on other variables in this paper, many demographic factors in addition to gender and race may influence judging. In general, political identifications are important influences on judging. (71) Empathy and life experience – specifically, having at least one daughter – may influence conservative male judges to decide favorably toward women on gender-related issues. (72) (This finding suggests that empathy, a quality stereotypically attributed more to women than men, has a broader applicability.)
Some factors are more specific to asylum judges. As noted above, in US asylum cases, one factor interacting with gender is professional experience. US asylum judges with previous experience working for the government in immigration enforcement or other capacities are less favorable to asylum claimants than judges without this governmental experience. (73) Other aspects of a judge’s professional experience, such as a background in women’s rights, are also relevant in gender-specific asylum claims. (74) Additional relevant factors in the asylum judiciary may include a judge’s specific geographical region and court, and her or his political views on immigration. (75)
Thus, diversity in the asylum system may improve the environment for asylum seekers, not necessarily in terms of judicial decisions but at least in terms of having their story fairly heard and understood. Arguably, women and minorities may help to foster a climate in which this reception is more likely than one in which mostly non-white asylum claimants face a more skeptical white male judge, often predisposed to the government’s restrictionist goals, and with a very different set of life experiences from the claimant.
Some problems with the US system as it currently stands (though without reference to judicial diversity) are described by one lawyer:
“‘It’s such a high-volume system where the participants have so little time to test cases and make decisions, you become much more subject to the general viewpoint of the judge,’ said Bo Cooper, a lawyer at Paul, Hastings, Janofsky & Walker who is a former general counsel of the Immigration and Naturalization Service. That has created a risk, Mr. Cooper said, that ‘the system will not be good enough at providing refuge to those in need or identifying the claims of those who are not in need.’” (76)
But what is the problem with being “subject to the general viewpoint of the judge,” which is often a white and male viewpoint? Some may defend the current US asylum system with all of its inconsistencies – on the ground that such inconsistencies reflect judicial impartiality that should not be compromised. (77) However, low judicial diversity may preserve partiality rather than impartiality, due to the dominance of male judges with experience in immigration enforcement who are more likely to reject asylum claims. Improving judicial diversity might improve rather than hinder impartiality. (78) The next section will specify more details of such possible recommendations.
In this concluding section I will summarize this article, review recommendations for improving judicial diversity, point to areas for further research and speculate about the applicability of this research to international human rights law broadly.
Diversity is potentially valuable in the asylum judiciary in North America and Europe. Normatively, diversity would remedy the overrepresentation of white male immigration judges who handle cases of many asylum claimants who are nonwhite, female or both. Empirically, diverse judges, in particular women, might ensure a better process for asylum seekers, especially those with experiences of torture and trauma, and with gender and sexual persecution claims. Overall, diversification of asylum judiciaries may help improve these systems towards the “fair and efficient” asylum system guidelines specified by the UN. (79)
A judge’s gender and race per se, while possibly helpful for improving the process of hearing asylum claims and even for favoring some asylum seekers, do not absolutely influence asylum case outcomes in any one direction.
However, I make such claims with caution. Research on this subject is underdeveloped. A judge’s gender and race per se, while possibly helpful for improving the process of hearing asylum claims and even for favoring some asylum seekers, do not absolutely influence asylum case outcomes in any one direction. In the US and Canada, a judge’s gender is more of a determining factor when combined with others, especially with the judge’s professional experience in positions that might have given her a favorable outlook toward asylum claimants. Furthermore, research is limited on this subject in general, and especially outside the US and Canada. No research has linked judges’ race or ethnicity with their asylum decisions, probably due to data limitations.
That said, I still hold that diversity is important in the asylum judiciary in particular (where these limited effects do seem to exist) and in judiciaries in general. The normative and empirical arguments throughout this article point to the benefits of diversity. I will now summarize some recommendations for improving judicial diversity in specific countries.
Depoliticization of the hiring process for immigration judges and administrative officers, and other efforts to diversify the bench, may help. (80)
In the US, one report specifically focuses on how to reduce bias in the immigration court system, including how to appoint more female judges and judges without experience in professions adversarial to immigrants. Depoliticization of the hiring process for immigration judges and administrative officers, and other efforts to diversify the bench, may help. (80)
The US asylum system includes both administrative agencies and federal immigration courts. (81) Although the asylum system excludes state courts, reports on improving diversity in state courts might provide relevant ideas for the federal level. (82) Recommendations at the state level include understanding implicit bias against underrepresented candidates, improving nomination and selection processes, diversifying judicial appointment commissions and collecting better data. Merit selection systems, which may be designed to increase diversity, often result in higher numbers of minority and women judges, as compared to other types of appointments or elections.
In the other common law countries of Canada and the UK, which like the US collect comprehensive demographic data, advocates have also made recommendations for improving judicial diversity, including governmental action and better collection of data on appointments. (83)
Another cross-national study finds that women’s increased representation in the legislative and executive branches is associated with more women in the judiciary, due to political appointment processes as well as general gender empowerment. (85)
A few additional studies make recommendations across numerous countries, even those without comprehensive data on race and gender and without very visible initiatives to improve diversity. It is clear that a simple increase in the number of women and minorities in law schools is not enough to ensure their advancement into the judiciary. Rather, specific policies and initiatives, relevant to each national context, are needed to achieve more diversity. (84) Another cross-national study finds that women’s increased representation in the legislative and executive branches is associated with more women in the judiciary, due to political appointment processes as well as general gender empowerment. (85)
This paper has pointed to gaps in the research on cross-national judicial diversity in asylum systems. However, many scholars, journalists and activists have worked hard to track down relevant data. New publications have been rapidly appearing in recent years, and I have attempted to list them in this paper. To encourage and assist this trend, I will both thank these individuals for their work and also point to areas in which more research appears to be needed. First, more research on the gender of asylum judges and its impact on decisions (especially outside of the US and Canada) is necessary. Second, any research on the race of asylum judges and its impact on decisions would be useful, as such research does not appear to exist – probably due to data limitations in many countries.
Third, other identity variables that impact asylum decisions would also be useful to study. Professional experience is an important one, and it interacts with gender. More research could examine other variables such as a judge’s sexual orientation. This area is under-researched probably because very few judges are openly gay. (86) However, despite this, it might be useful to examine whether a judge’s gender or sexual orientation (or any other identity variables such as race or religion) affect cases in which sexual minority asylum claimants seek protection from persecution based on sexual orientation. This issue matters because some activists argue that heterosexual male judges may be skeptical of sexual orientation persecution claims, (87) and that the entire refugee process throws obstacles in the way of sexual minority claimants. (88)
The International Criminal Court has a strong record of appointing women judges, especially those with professional background in gender issues.
Finally, I will consider what the study of diversity in refugee and asylum judiciaries may tell us about human rights law more broadly. This area of research – judicial demographics in international courts – is somewhat small. One study examines the effect of several variables (nationality, country’s legal culture, professional experience) on the decisions of judges in the European Court of Human Rights. (89) A scholar of gender and politics finds that the International Criminal Court has a strong record of appointing women judges, especially those with professional background in gender issues, who can bring this experience to bear on cases of gender and sexual violence. (90)
Based on this research, I suggest that the study of diversity in various countries’ asylum and refugee systems might pave the way for more research on diversity in international human rights judiciaries. Then we could study whether judiciary diversity matters even more broadly for human rights law throughout the world, beyond what we already can surmise about refugee and asylum law in a few countries.
• • •
Morgenstern, Ava. “Judicial Diversity in North American and European Asylum Court Systems: A Literature Review.” In Transatlantic Perspectives on Diplomacy and Diversity, edited by Anthony Chase, 21-38. New York: Humanity in Action Press, 2015.
- Of course, many other factors influence judging, such as political views and professional experience. I will mention these and other variables later in the paper. However, for the sake of simplicity, in this article I will focus on race and gender as key variables of diversity. While the different legal traditions and different roles of judges across countries must also be considered, some cross-national research already exists trying to bridge those differences by examining a key factor such as gender (see Schultz and Shaw, 2003).
- I use the US convention in which the word “race” refers to ethnic groups as often categorized in the contemporary U.S. (i.e., African-American, Latino, Asian-American, Arab-American, Native American, Caucasian, etc.). Where this word does not apply to a European context, the reader should instead consider local terminology for people of minority ethnic or immigrant backgrounds who are underrepresented in positions of power such as judiciaries.
- Refugees are distinguished from asylum seekers in that the former have already been designated as such by the UNHCR or a receiving country, while the latter are still waiting to present a claim for refugee status in a receiving country (see: United Nations High Commissioner for Refugees. “Asylum-Seekers.” Geneva: United Nations High Commissioner for Refugees, 2014a).
- Feller, Erika. “The Evolution of the International Refugee Protection Regime.” Washington University Journal of Law & Policy 5 (2001): 129.
- United Nations. “Universal Declaration of Human Rights.” New York: United Nations, 1948.
- United Nations. “Convention Relating to the Status of Refugees.” Geneva: United Nations, 1951; United Nations. “Convention and Protocol Relating to the Status of Refugees.” New York: United Nations, 1967.
- United Nations High Commissioner for Refugees. “Convention and Protocol Relating to the Status of Refugees.” Geneva: United Nations High Commissioner for Refugees, 2010.
- United Nations High Commissioner for Refugees. “The 1951 Convention Relating to the Status of Refugees and Its 1967 Protocol.” Geneva: United Nations High Commissioner for Refugees, 2011.
- Gorlick, Brian. “Human Rights and Refugees: Enhancing Protection through International Human Rights Law.” Geneva: United Nations High Commissioner for Refugees, 2000.
- International Justice Resource Center. “Asylum and the Rights of Refugees.” San Francisco: International Justice Resource Center, n.d.
- European Commission. “A Common European Asylum System.” Brussels: European Commission, 2014; Human Rights First. “How Refugees Get to the U.S.” New York: Human Rights First, 2010.
- United Nations High Commissioner for Refugees, 2011, page 5.
- United Nations High Commissioner for Refugees. “Refugee Figures.” Geneva: United Nations High Commissioner for Refugees, 2014c.
- Feller, 2001; Gorlick, 2000; United Nations High Commissioner for Refugees, 2011.
- Chishti, Muzaffar, and Faye Hipsman. “Dramatic Surge in the Arrival of Unaccompanied Children Has Deep Roots and No Simple Solutions.” Washington: Migration Policy Institute, 2014; Lee, Esther Yu-Hsi. “U.N. Officials Seek Refugee Label for Kids Coming into America Alone.” ThinkProgress.com, 2014; Newland, Kathleen. “What Is the Right Policy toward Unaccompanied Children at U.S. Borders?” Migration Policy Institute, 2014; Obser, Katharina. “Children and Families Seeking Protection Deserve Better Than Detention and Summary Deportation.” Human Rights First, 2014; United Nations High Commissioner for Refugees. “Children on the Run: Unaccompanied Children Leaving Central America and Mexico and the Need for International Protection.” Geneva: United Nations High Commissioner for Refugees, 2014b.
- Amnesty International. “The Human Cost of Fortress Europe: Human Rights Violations against Migrants and Refugees at Europe’s Borders.” London: Amnesty International, 2014; Chulov, Martin, and Harriet Grant. “EU Must Open Doors to Avoid Syrian Refugee Catastrophe, Says UN.” The Guardian, 2014; Spiegel Online International. “Fortress Europe: How the EU Turns Its Back on Refugees.” Spiegel Online International, 2013; United Nations High Commissioner for Refugees, 2014b.
- United Nations High Commissioner for Refugees, 2011, page 5.
- Even if less research exists on asylum judiciaries compared to other types of cases, as stated earlier.
- I will focus on racial and gender diversity in this discussion, though studies of demographics on the Supreme Court have also considered regional and religious diversity. Notably, the current Supreme Court contains no Protestants despite the majority status of this religious group in the U.S. (see: Gibson, David. “No Protestants: A New Order in the Supreme Court.” PoliticsDaily.com, 2010)
- Scherer, Nancy. “Diversifying the Federal Bench: Is Universal Legitimacy for the U.S. Justice System Possible?” Northwestern University Law Review 105, no. 2 (2011): 587.
- Baker, Peter. “In Court Nominees, Is Obama Looking for Empathy by Another Name?” New York Times, 2010; Scherer, 2011.
- As quoted in Broder, David. “Thomas Backs Democrats into a Corner.” Chicago Tribune, 1991.
- As quoted in Greenhouse, Linda. “The Thomas Hearings: In Trying to Clarify What He Is Not, Thomas Opens Question of What He Is.” New York Times, 1991.
- Thomas, Clarence. Barbara Grutter, Petitioner V. Lee Bollinger Et Al.: Opinion of Thomas, J., (2003).
- Savage, Charlie. “Videos Shed New Light on Sotomayor’s Positions.” New York Times, 2009.
- Sotomayor, Sonia. “A Latina Judge’s Voice.” Berkeley La Raza Law Journal 13, no. 1 (2002): 87.
- As quoted in CNN. “‘Latina Woman’ Remark May Dominate Sotomayor Hearings.” CNNPolitics.com, 2009.
- Herszenhorn, David M., and Carl Hulse. “Parties Plot Strategy as Sotomayor Visits Capitol.” New York Times, 2009.
- Liptak, Adam. “Sotomayor Finds Her Voice among Justices.” New York Times, 2014.
- While these two categories (common law and civil law) are themselves very broad and mask considerable diversity between countries, I follow the conventions of these researchers who find these basic differences by gender attributable to these categories.
- Schultz, Ulrike. “Introduction: Women in the World’s Legal Professions: Overview and Synthesis.” In Women in the World’s Legal Professions, edited by Ulrike Schultz and Gisela Shaw. xxv-lxii. Oxford ; Portland, Or.: Hart, 2003.
- Malleson, Kate. “Prospects for Parity: The Position of Women in the Judiciary in England and Wales.” In Women in the World’s Legal Professions, edited by Ulrike Schultz and Gisela Shaw. 175-90. Oxford ; Portland, Or.: Hart, 2003.
- Cairns Way, Rosemary. “Deliberate Disregard: Judicial Appointments under the Harper Government.” Ottawa: Ottawa Faculty of Law, 2014.
- Center for American Progress. “Legal Progress Toolkit: Why Courts Matter: Diversity.” Washington: Center for American Progress, 2013; Institute for Inclusion in the Legal Profession. “IILP Review 2012: The State of Diversity and Inclusion in the Legal Profession.” Chicago: Institute for Inclusion in the Legal Profession, 2012; Torres-Spelliscy, Ciara, Monique Chase, and Emma Greenman. “Improving Judicial Diversity.” New York: Brennan Center for Justice, 2010.
- Cavendish, Betsy, and Steven Schulman. “Reimagining the Immigration Court Assembly Line: Transformative Change for the Immigration Justice System.” Washington: Appleseed, 2012: 23.
- Boigeol, Anne. “Male Strategies in the Face of the Feminisation of a Profession: The Case of the French Judiciary.” In Women in the World’s Legal Professions, edited by Ulrike Schultz and Gisela Shaw. 401-18. Oxford ; Portland, Or.: Hart, 2003.
- Schultz, 2003.
- Böcker, Anita, and Leny de Groot-van Leeuwen. “Ethnic Minority Representation in the Judiciary: Diversity among Judges in Old and New Countries of Immigration.” Judiciary Quarterly (2007): 1-52; Center for American Progress, 2013; Institute for Inclusion in the Legal Profession, 2012; Makin, Kirk. “Of 100 New Federally Appointed Judges 98 Are White, Globe Finds.” The Globe and Mail, 2012; Torres-Spelliscy, Chase, & Greenman, 2010.
- While much legal scholarship may acknowledge the role of judges’ backgrounds in their judging, political beliefs that judges can minimize such influences seem to be common.
- Scherer, 2011: 587.
- Scherer, 2011: 620.
- Scherer, 2011: 623.
- Legomsky, Stephen H. “Learning to Live with Unequal Justice: Asylum and the Limits to Consistency.” Stanford Law Review 60, no. 2 (2007): 413.
- Legomsky, 2007: 457
- Abel, Richard L. “What We Talk About When We Talk About Law.” In The Law & Society Reader. 1-12. New York: New York University Press, 1995: 4.
- Abel, 1995: 2.
- Minow, Martha. “Justice Engendered.” Harvard Law Review 101 (1987): 10.
- Johnson, Kevin R., and Luis Fuentes-Rohwer. “A Principled Approach to the Quest for Racial Diversity on the Judiciary.” Michigan Journal of Race & Law 10, no. 1 (2004): 6.
- Kenney, Sally J. “Thinking About Gender and Judging.” International Journal of the Legal Profession 15, no. 1-2 (2008): 87.
- Boyd, Christina L., Lee Epstein, and Andrew D. Martin. “Untangling the Causal Effects of Sex on Judging.” American Journal of Political Science 54, no. 2 (2010): 389.
- Scherer, 2011: 590.
- Boyd, Epstein, & Martin, 2010: 390
- Scherer, 2011: 599.
- Scherer, 2011: 608.
- Munyan, Katherine. “Judicial Diversity Matters—at Home and Abroad.” In Brennan Center for Justice. New York: Brennan Center for Justice, 2013.
- Boyd, Epstein, & Martin, 2010.
- Chen, Edward M. “The Judiciary, Diversity, and Justice for All.” California Law Review 91, no. 4 (2003): 1109.
- Johnson & Fuentes-Rohwer, 2004: 6.
- Page, Scott E. “Making the Difference: Applying a Logic of Diversity.” Academy of Management Perspectives 21, no. 4 (2007): 6.
- Kenney, Sally J. “Critical Perspectives on Gender and Judging.” Politics and Gender 6, no. 3 (2010): 433.
- Boyd, Epstein, & Martin, 2010; Davis, Sue, Susan Haire, and Donald R. Songer. “Voting Behavior and Gender on the U.S. Courts of Appeals.” Judicature 77, no. 3 (1993): 129; Peresie, Jennifer L. “Female Judges Matter: Gender and Collegial Decisionmaking in the Federal Appellate Courts.” The Yale Law Journal 114, no. 7 (2005): 1759.
- Peresie, 2005.
- Ramji-Nogales, Jaya, Andrew I. Schoenholtz, and Philip G. Schrag. “Refugee Roulette: Disparities in Asylum Adjudication.” Stanford Law Review 60, no. 2 (2007): 295.
- Those interested in further research in the US context may access judges’ information via several datasets (Georgetown University Law Center. “Refugee Roulette.” Washington: Georgetown University Law Center, n.d.; TRAC Immigration. “Immigration Judge Reports — Asylum.” TRAC Reports, Syracuse University, 2011; Zuk, Gary, Deborah J. Barrow, and Gerard S. Gryski. “Multi-User Database on the Attributes of United States Appeals Court Judges, 1801-2000.” Ann Arbor, MI: Inter-university Consortium for Political and Social Research, 2009.
- Cavendish, Schulman, 2012: 23.
- Rehaag, Sean. “Do Women Refugee Judges Really Make a Difference?: An Empirical Analysis of Gender and Outcomes in Canadian Refugee Determinations.” Canadian Journal of Women and the Law 23, no. 2 (2011): 627.
- Schultz, 2003.
- Cox, Adam B., and Thomas J. Miles. “Judging the Voting Rights Act.” Columbia Law Review 108, no. 1 (2008): 1; Kastellec, Jonathan P. “Racial Diversity and Judicial Influence on Appellate Courts.” American Journal of Political Science 57, no. 1 (2013): 167; Scherer, Nancy. “Blacks on the Bench.” Political Science Quarterly 119, no. 4 (2004): 655.
- Kastellec, 2013.
- Collins, Todd, and Laura Moyer. “Gender, Race, and Intersectionality on the Federal Appellate Bench.” Political Research Quarterly 61, no. 2 (2008): 219. Other research on U.S. Department of Homeland Security asylum officers (who are not judges but who play a role in deciding which asylum claimants may proceed through the process) also focuses on both gender and ethnicity (see: Schoenholtz, Andrew I., Philip G. Schrag, and Jaya Ramji-Nogales. Lives in the Balance: Asylum Adjudication by the Department of Homeland Security. New York: New York University Press, 2014). These researchers find that among these officers (as opposed to asylum judges), gender is not significant, but ethnicity has mixed effects depending on other variables. The research examines multiple variables such as marital status, region of birth, prior work experience and education (officers with a JD legal education demonstrate more consistent asylum grant rates among themselves compared to officers without a JD).
- Rehaag, Sean. “Judicial Review of Refugee Determinations: The Luck of the Draw?” Queen’s Law Journal 38, no. 1 (2012): 1-58.
- Glynn, Adam N., and Maya Sen. “Identifying Judicial Empathy: Does Having Daughters Cause Judges to Rule for Women’s Issues?” American Journal of Political Science (2014).
- Ramji-Nogales, Schoenholtz, & Schrag, 2007.
- Rehaag, 2011.
- Keith, Linda Camp, Jennifer S. Holmes, and Banks P. Miller. “Explaining the Divergence in Asylum Grant Rates among Immigration Judges: An Attitudinal and Cognitive Approach.” Law & Policy 35, no. 4 (2013): 261; Ramji-Nogales, Schoenholtz, & Schrag, 2007.
- Preston, Julia. “Big Disparities in Judging of Asylum Cases.” New York Times, 2007.
- Legomsky, 2007
- Johnson & Fuentes-Rohwer, 2004
- United Nations High Commissioner for Refugees, 2011: 5.
- Cavendish & Schulman, 2012.
- O’Dwyer, Paul. “A Well-Founded Fear of Having My Sexual Orientation Asylum Claim Heard in the Wrong Court.” New York Law School Law Review 52, no. 2 (2008): 185.
- Reddick, Malia, Michael J. Nelson, and Rachel Paine Caufield. “Racial and Gender Diversity on State Courts.” The Judges’ Journal 48, no. 3 (2009); Torres-Spelliscy, Chase, & Greenman, 2010.
- Cairns Way, 2014; Makin, 2012; United Kingdom Ministry of Justice. “Improving Judicial Diversity.” United Kingdom Ministry of Justice, 2013.
- Böcker & de Groot-van Leeuwen, 2007; Schultz, Ulrike, and Gisela Shaw. Women in the World’s Legal Professions. Oxford ; Portland, Or.: Hart, 2003.
- Thames, Frank, and Margaret S. Williams. Contagious Representation: Women’s Political Representation in Democracies around the World. New York: New York University Press, 2013.
- Millhister, Ian. “President Obama Has Now Quadrupled the Number of Openly Gay Judges on the Federal Bench.” ThinkProgress.com, 2012.
- O’Dwyer, 2008: 206, 210.
- LaViolette, Nicole. “Overcoming Problems with Sexual Minority Refugee Claims: Is LGBT Cultural Competency Training the Solution?” In Fleeing Homophobia. Sexual Orientation, Gender Identity and Asylum, edited by Thomas Spijkerboer. Oxon, UK: Taylor & Francis Books, 2013.
- Voeten, Erik. “The Impartiality of International Judges: Evidence from the European Court of Human Rights.” The American Political Science Review 102, no. 4 (2008): 417.
- Chappell, 2013.