Academic

Sotomayor, Diversity, And Group Dynamics: Why Do We Care? What Do We Know?

By Kim Krawiec

Sonia Sotomayor arrives at the Court this week for a special session, capping off a long and often heated debate about her qualifications, her ideology, and her potential impact on the Court.  This latter point, of course, has included many discussions about the relative virtues, if any, of ?wise Latina judges? and whether gender, racial, and ethnic diversity are valuable on the Supreme Court.   

Former Justice Sandra Day O'Connor and current Justice Ruth Bader Ginsburg, for example, have urged the appointment of another woman.  Similarly, the law professors? letter to Senators Leahy and Sessions in support of Judge Sotomayor argues, without elaboration, that, ?Judge Sotomayor will bring to the Supreme Court an extraordinary personal story, academic qualifications, remarkable professional accomplishments and much needed ethnic and gender diversity.? (emphasis mine)  And the recent rumors that Justice Stevens may retire (propelled by news that he has hired only one law clerk) have again prompted discussions of Obama?s likely replacement choice, and whether diversity on the court will play a role in it.

One of the striking things to me about many of these discussions, at least as they have played out in the media and political arenas, is their rather vacuum-like nature.  One can?t expect particularly sophisticated debate from politicians, of course, and the press has papers to sell and a story to spin (although I note that both Emily Bazelon and Dahlia Lithwick (here and here) pressed better than most the question of why the gender make-up of the court might be relevant).  But even an attentive follower of the Sotomayor debates could have emerged from the fray with no inkling of the vast research conducted over the years seeking to gauge diversity?s impact in a variety of settings ? including courts, corporate boards, state legislatures, and work teams of various sorts -- often with equivocal results. 

The issue of diversity on corporate boards, for example, has been the subject of intense public, academic, and regulatory focus in many countries in recent years. In Norway, gender representation on corporate boards is set by government mandate. Legislation enacted in 2006 required that roughly 40% of public company board seats be held by women by the year 2008, and as of January 2008, women held close to 38% of board seats at Norwegian public corporations, the world?s highest percentage.  The news prompted claims of victory from the legislation?s advocates, as well as charges of quotas, window-dressing, and divisiveness from opponents.  (For a discussion of the Norway experience, see Reiersen and Sjafsjell 2008).

In the United States, by contrast, the make-up of corporate boards has been left to market forces and private advocacy efforts.  Dozens of advocacy groups in the United States are dedicated to promoting board diversity, by measuring it, studying it, or providing training or mentoring to potential female or minority board members.  Examples include: Catalyst (www.catalyst.org); The Executive Leadership Council® (www.elcinfo.com); and the Hispanic Association for Corporate Responsibility (www.hacr.org).

These debates about the value, if any, of diversity on corporate boards have become all the more salient in the wake of the economic crisis, centering primarily on whether diverse boards (and especially boards with more female members) would have behaved more conservatively, averting excessive risk-taking and the accompanying financial mishaps.  Michael Lewis questioned in Vanity Fair, for example, whether in Iceland, ?where men are men, and the women seem to have completely given up on them,? the presence of more women in decision-making positions in financial institutions might have averted the country?s financial collapse.  Similar refrains were echoed in the U.K. and the U.S, although others have argued that the increased monitoring associated with more women on boards can have a negative effect on well-governed businesses.   

Over the next week or so, I?ll continue this discussion of race and gender diversity, with a particular focus on the research on corporate board diversity.  Does such diversity matter?  If so, why?  Does it matter across all institutions, or does its importance vary with context?  What do we mean by ?diversity? (and by this I do not mean whether Justice Cardozo qualifies as Latino, but whether numbers matter ? a critical mass, as it is sometimes called.)

In my next post on this topic, Do The Right Thing, So Long As It?s Free, I?ll discuss some of the theories that have been proffered to explain why corporations might seek to diversify their boards, starting with fairness theories.  In subsequent posts, I?ll discuss performance-based theories of board diversity, the empirical research on corporate board diversity, and what corporate insiders themselves say about whether and why board diversity matters. 

Full post as published by The Faculty Lounge on September 07, 2009 (boomark / email).