The myth of black ‘underrepresentation’ in the judiciary and power circles

The myth of black ‘underrepresentation’ in the judiciary and power circles

No matter how many black people are in a government body or on corporate board, they are invariably described by liberal journalists as “underrepresented.” That’s because most Americans have no idea just how small a fraction of Americans are black. Only 12-14% of Americans are black, depending on how black is defined, yet the average American thinks America is 41% black. As a result, Americans wrongly think blacks are underrepresented even in places where a third or more of the people are black. Journalists, who are usually not good at math, are particularly bad at this.

As the pollster YouGov notes, “Black Americans estimate that, on average, Black people make up 52% of the U.S. adult population; non-Black Americans estimate the proportion is roughly 39%, closer to the real figure of 12%.”

When it comes to estimating the size of demographic groups, Americans rarely get it right. In two recent YouGov polls, we asked respondents to guess the percentage (ranging from 0% to 100%) of American adults who are members of 43 different groups, including racial and religious groups, as well as other less frequently studied groups, such as pet owners and those who are left-handed.

When people’s average perceptions of group sizes are compared to actual population estimates, an intriguing pattern emerges: Amercians tend to vastly overestimate the size of minority groups. This holds for sexual minorities, including the proportion of gays and lesbians (estimate: 30%, true: 3%), bisexuals (estimate: 29%, true: 4%), and people who are transgender (estimate: 21%, true: 0.6%).

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It also applies to religious minorities, such as Muslim Americans (estimate: 27%, true: 1%) and Jewish Americans (estimate: 30%, true: 2%). And we find the same sorts of overestimates for racial and ethnic minorities, such as Native Americans (estimate: 27%, true: 1%), Asian Americans (estimate: 29%, true: 6%), and Black Americans (estimate: 41%, true: 12%).

Because blacks are wrongly viewed as underrepresented in society’s power circles by people who think much of the population is black, presidents have appointed so many blacks to the federal bench that black men’s representation on the bench exceeds their percentage of the population. As former Justice Department lawyer Ed Whelan noted a year ago, when there were fewer blacks on the bench, “black men are overrepresented in the federal judiciary: They account for 7.9 percent of active federal judges but only 6.8 percent of the population.”

Black men are even more overrepresented compared to their share of the legal profession. The black percentage of the legal profession is a much more logical benchmark for assessing “underrepresentation” than the black percentage of the population, because judges need legal experience to do their job competently, so it is the legal profession’s demographics that potentially matter, not the general population’s. According to “the American Bar Association’s 2020 Profile of the Legal Profession….85.9 percent of American lawyers are white, 4.7 percent are African American, 4.6 percent are Hispanic, and 2.1 percent are Asian American.” While whites “account for 85.9 percent of lawyers,” they account for “only 72 percent of active federal judges,” making whites underrepresented on the bench.

“Meanwhile, African Americans are overrepresented by a factor of nearly three: They make up 12.7 percent of active federal judges while accounting for only 4.8 percent of lawyers,” said Whelan back in June 2021, when there were fewer blacks on the bench. “Hispanics are doubly overrepresented: 9 percent of active federal judges versus 4.6 percent of lawyers. Ditto for Asian Americans: 4.7 percent of active federal judges versus 2.1 percent of lawyers,” notes Whelan.

Black overrepresentation will continue to grow. In June 2021, the Washington Post reported that “President Biden has nominated 11 minority women, 4 minority men and 4 White women [to the federal bench]. He has not yet nominated any White men.”

James Wilson

James Wilson writes about law and policy.


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