Statistics show that South Carolina’s courts are not as diverse as the populations they serve.

Several studies conducted in the last 20 years have suggested that beyond increasing public trust in the judiciary, creating a more proportionally diverse judicial system can actually increase justice by influencing how decisions get made.

“The Gavel Gap,” a 2014 study by the American Constitution Society, found that most state judiciaries in the country, including in South Carolina, do not represent the populations of the state.

“Our laws are premised in part on the idea that our courts will be staffed by judges who can understand the circumstances of the communities which they serve,” authors Tracey George and Albert Yoon wrote. “Our judicial system depends on the general public’s faith in its legitimacy. Both of these foundational principles require a bench that is representative of the people whom the courts serve.”

While women made up about 51 percent of South Carolina’s population in 2018, they currently hold about 34 percent of the judicial positions in the state, according to statistics provided by the South Carolina Judicial Department. And while non-white people made up about 31 percent of the total population in South Carolina in 2018, statistics showed that minorities currently hold only 13 percent of judicial positions in the state.

York County Associate Chief Magistrate Chisa Putman, who in 2017 became only the second African-American female to ever hold her position, said that she believes judges should be representative of the communities in which they serve.

“The judiciary, regardless of the level, should be reflective of those for whom the decisions are made,” she said.

I.S. Leevy Johnson, the first African American graduate of the University of South Carolina School of Law and president of the South Carolina Bar Association, and founding partner at Johnson, Toal & Battiste in Columbia, said that diversity also plays a role in the perception of fairness.

“From a historical point of view, African-Americans have had mixed emotions about the judiciary because the history demonstrates that the judiciary was heavily involved in not always obeying the rule of law,” Johnson said. “The law was abused by some law enforcement officers and people involved in the judiciary.”

South Carolina civil rights attorney Armand Derfner of Derfner & Altman in Charleston said that the job of judges is to keep an open mind and decide as objectively as they can. Having diversity among perspectives, he said, actually increases the likelihood of getting the judgment right.

“Racial diversity allows all judges to be open to all the facts in the fullest way possible because their collective experiences are greater than their individual perspectives,” Derfner said. “Judges with different backgrounds will have different perceptions on the evidence they hear.”

Apart from racial and gender diversity, Derfner said, the judiciary also needs class and law experience diversity.

“I think all judges try to be fair, but it’s a question of what your experience has been which shapes your perceptions,” he said.

While the population of the South Carolina judiciary does not yet line up with the population of the state, statistics show significant improvement since 2009, when the National Center for State Courts found that only 12 percent of judges were female and minorities only held 9 percent of judgeships.

While improvements have occurred, Putman said more must still be done.

“It is a shame that in 2019 we still have to point out the lack of diversity in our judiciary,” she said. “We have become more diverse in respect to gender, but we are not hitting the mark on racial diversity.”

In 2018 the American Bar Association reported that women made up about 34 percent of the national lawyer population while minorities made up only about 15 percent.

This implies that while the number of female and minority judges in South Carolina are relatively proportionate to the attorney population in the country (again, 34 percent of judges are women, and 13 percent are minorities in South Carolina), the proportion of female and minority attorneys does not line up with state population figures.

Putman said in a 2017 interview that to fix the issue of the relative lack of diversity in the judiciary in South Carolina, the lack of diversity in law must first be addressed.

“You have to get them interested in the field before you can expect that they would want to go to the bench,” she said. Additionally, she said, more efforts should be made to prepare minority and female lawyers for a career on the bench, but that ultimately a lack of opportunity is also at fault.

In South Carolina, the legislature has the ability to influence the diversity of the judiciary in an unusually direct way. It’s one of only two states, along with Virginia, where legislators are responsible for selecting state judges.

Johnson said that the solution to the issue, then, is threefold. People in positions of power must advocate for women and people of color, the public must demand a diverse judiciary, and qualified lawyers must put themselves forward to let it be known that they want the jobs.

“It’s going to take a combination of efforts by our senators and members of the House of Representatives, and African-Americans and women are going to have to start campaigning for those positions,” he said. “And there needs to be a groundswell of public support to have the judiciary diversified.”

Percentage of Total Percentage of Total
Female Judges in SC (2019) 34 percent Minority Judges in SC (2019) 13 percent
Male Judges in SC (2019) 66 percent White Judges in SC (2019) 87 percent
Female Population in SC (2018) 51 percent Minority Population in SC (2018) 31 percent
Male Population in SC (2018) 49 percent White Population in SC (2018) 69 percent
Female Lawyers in U.S. (2018) 36 percent Minority Lawyers in U.S. (2018) 15 percent
Male Lawyers in U.S. (2018) 64 percent White Lawyers in U.S. (2018) 85 percent

Follow Matt Chaney on Twitter @SCLWChaney

 



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