Minority Representation on the U.S. Court of Appeals: Do Foreign-Born Judges Influence Immigration Case Outcomes?

This paper assesses the impacts of minority representation on judicial decisionmaking within three-judge panels on the Ninth Circuit of the U.S. Court of Appeals. While much of the existing literature regarding this issue has looked at racial and gender minorities in the federal judiciary, this paper seeks to identify whether the presence of foreign-born judges on appellate panels has an effect on the holdings of immigration-related cases. To address this question, I compiled an original database of 200 immigration cases decided between 2016 and 2020. The results reaffirm previous findings that panels with at least one female judge or judge of color are more likely to vote in favor of immigrant appellants. However, contrary to theoretical expectations, the results find that foreign-born judges were not more likely to vote in favor of immigrant appellants, signaling that the identity of being an immigrant may not have as strong of a predictive value on judicial decision-making as race or gender. This has broad implications for how we understand the role of different identities in shaping case outcomes in the U.S. Court of Appeals. Introduction The judicial branch of the United States government is its most objective. Unlike the chambers of Congress or the President, federal judges are meant to make decisions independent of personal or political pressures; rather than passing laws, their job is to apply the law correctly based on the facts of a case. However, a growing body of research into judicial decision-making suggests that judges do not always vote objectively. Scholars have found that certain factors — namely the race and gender of judges within appellate panels — can influence case decisions. Controversy over this issue arose in 2016, when then-President Donald Trump claimed that U.S. District Judge Gonzalo Curiel should not have presided over a case involving Trump University because his Mexican heritage presented an “absolute conflict. ” Since Trump was advocating to build a wall on the U.S.-Mexican border at the time, he asserted that the judge would harbor an unfair bias towards him during legal proceedings. In the end, Judge Gonzalo Curiel remained on the lawsuit’s panel and would go on to rule in Trump’s favor to stop a lawsuit aimed at blocking the border wall’s construction. While Trump’s remarks were deemed racist by many, the situation begs the question: Do personal identities influence judicial decision-making? In this section, I summarize the existing literature surrounding the effects of minority representation on the federal bench. Despite criticisms about the objectivity of minority judges, researchers have only found persistent differences in case decisions when the identities of minority judges substantively relate to the issues at hand. To illustrate this, Boyd, Epstein, and Martin (2010) performed a comprehensive analysis of the effect of judges’ gender on case outcomes across 13 areas of law. They did not find gender effects in any area of law besides cases of sex 1 Ortiz-Miskimen: Do Foreign-Born Judges Influence Immigration Case Outcomes? Published by Dartmouth Digital Commons, 2018 Bianca Oritz-Miskimen Dartmouth Undergraduate Journal of Politics, Economics and World Affairs, Vol. 1 [2021], Iss. 3, Art. 8 Published by Dartmouth Digital Commons, 2021 159 discrimination, in which female judges were more likely to side with plaintiffs. This suggests that a general pro-plaintiff or otherwise liberal attitude among female judges is not driving gender differences in voting behaviors, but rather, the content of sex discrimination cases specifically elicits different responses in male and female judges. Since the focus of this paper is on the U.S. Court of Appeals, my research must properly account for its institutional features. While some studies have assessed differences in individual voting behaviors between minority and nonminority judges, these individual effects cannot explain Court of Appeals outcomes because federal appellate panels do not operate by having judges decide cases on their own. Instead, judges in the Court of Appeals deliberate together in panels of three and must come to a unanimous decision about a case’s holding. Research shows that minority representation on appellate panels impacts judicial decisions both at the individual and panel level. That is, not only are individual female judges more likely to vote in favor of appellants alleging sex discrimination, but panels that include at least one female judge are also more likely to vote in favor of these appellants. Similarly, Black judges and panels with Black judges are more likely to vote pro-appellant in cases of racial discrimination and affirmative action. In discussing appellate panels, it is also important to note their institutional norm of consensus. An overwhelming majority of cases are decided with consensus; only around 6-8% of cases include a dissent opinion from one of the co-panelist judges. 13 However, the low percentage of dissents does not fully capture the amount of disagreement within panels — judges do not always dissent when they disagree with their co-panelists because there are costs associated with doing so. For example, dissenting can undermine the federal judiciary’s sense of legitimacy and perceived objectivity. Additionally, writing a dissent can ostracize a judge from their colleagues and create a fruitless workload for them. Therefore, judges in disagreement are often compelled to align themselves with the majority opinion and vote differently than they might otherwise have, making it difficult to determine whether judges voted in accordance with their true views. Most of the scholarship on judicial decision-making in the Court of Appeals has been concerned with race and gender. As a result, previous studies have mainly looked at the effects of minority representation on cases of sex and race discrimination. By contrast, very few studies have examined the influence of minority judge characteristics on cases related to immigration. One such study on immigration cases from 1999-2009 explored whether panels with judges of color and female judges systematically voted more pro-immigrant. The researchers found that consistent with previous studies, panels with at least one female judge voted more pro-immigrant than their all-male counterparts. However, the same study also found that panels with at least one judge of color were more anti-immigration than their all-white counterparts. The authors suggest that this finding could have arisen because judges of color were less sympathetic to “claims made by people who have entered the country illegally” or because “they are cognizant of the scrutiny they are under in deciding these cases. ” In my view, this also suggests that immigration cases are not substantively related to the racial identities of minority judges, so I turn my focus instead to foreign-born judges, whose relationship to immigration cases parallels that of female judges and judges of color to sex and race discrimination cases. Taken together, the literature on judicial diversity suggests that panels with racial and gender minority judges increase the likelihood of a case outcome being pro-appellant. However, in reviewing these studies, I found that there was a dearth of research into the panel effects of foreign-born judges in the Court of Appeals. Part of this problem is likely due to the fact that foreign-born judges are underrepresented in the circuit courts. Currently, the U.S. is home to roughly 44.7 million immigrants or around 13.7% of the national population. In states covered 2 Dartmouth Undergraduate Journal of Politics, Economics and World Affairs, Vol. 1 [2018], Iss. 3, Art. 8 https://digitalcommons.dartmouth. edu/dujpew/vol1/iss3/8 Minority Representation on the U.S. Court of Appeals Dartmouth Undergraduate Journal of Politics, Economics and World Affairs, Vol. 1 [2021], Iss. 3, Art. 8 Published by Dartmouth Digital Commons, 2021 160 by the Ninth Circuit, the immigrant population is even higher than the national average because they harbor some of the nation’s most popular airports and immigrants tend to concentrate near gateway ports of entry in their cities. By contrast, only 2 out of the 29 sitting judges (6.8%) on the Ninth Circuit court are foreign-born. The underrepresentation of immigrant judges has especially worrisome implications in the Ninth Circuit, since around 40% of all cases heard in its courts are related to immigration. Women, people of color, LGBTQ+ people, and religious minorities are also underrepresented in the Court of Appeals compared to their representation in the U.S. population, and this issue has increased with the recent judicial appointees. For example, women comprise 30% of circuit court seats although they are 50.52% of the U.S. population; Hispanics comprise 7% of seats although they are 13% of the population; Blacks comprise 11% of seats although they are 13% of the population; etc. In discussing diversity in the federal judiciary, I must highlight the difference between the descriptive representation that I have just described and substantive representation. Descriptive representation relates to being represented by judges who have the same demographic characteristics as the population. On the other hand, substantive representation relates to being represented by judges who hold the same opinions and views as the population. While these terms have some overlap in that judges who share demographic characteristics with a population may hold the same beliefs as them, minorities are certainly not a monolith and cannot be assumed to have one set of views, even in areas of law that are salient to their identities. Importantly, the Ninth Circuit’s diversity has gone through a shift in recent years. During Trump’s presidency, he filled 10 vacancies in the Ninth Circuit court alone. 24 This effectively flipped the composition of the court, wh