Each individual has a background, and that background shapes the individual’s views about life, creating an inevitable form of bias referred to as “experiential bias.” Experiential bias is shaped by many identity traits, including, among others, race, sex, sexual orientation, religion and even geography. The geographic identity of state judges and their potential unfair experiential bias is the common justification for federal court diversity jurisdiction. But experiential bias is inescapable, affecting everyone who's ever had an experience, and is generally not unfair, as demonstrated by most studies regarding the "fairness" justification for diversity jurisdiction. More recently, Justice O’Connor connected racial and geographic identity in her Grutter opinion, specifically acknowledging that the experiences associated with race and with growing up in a particular region shape a person’s views. This article explores how geographic identity and other identity traits are important to both federalism and equality principles because state identity is at the heart of federalism and individual identity is at the heart of equality. Both states and individuals, with the associated experiential biases stemming from geography and other identity traits, have interests in being represented in a democracy that values federalism and equality. In recent years, the geographic background of the United States Supreme Court, for instance, has shifted from one which is representative of the nation, to one dominated by appellate judges from the northeast. The importance of this shift cannot be overstated, as studies have shown that judges are as much as twice as likely to affirm opinions from their geographic “home” courts as those from any other. Also, as discussed following Justice Sotomayor's "wise Latina woman" comment, the Court lacks diversity in ways that implicate equality principles as well. This article concludes that for purposes of federalism, diversity, and equality, the selection pool for Article III judges must be broadened in terms of both geography and experience.
Sharon E. Rush, Federalism, Diversity, Equality, and Article III Judges: Geography, Identity, and Bias, 79 Mo. L. Rev. 119 (2014), available at http://scholarship.law.ufl.edu/facultypub/468