Advocacy for Action (“AFA”) is a
not-for-profit social welfare organization established by a joint task force
under the auspices of two of Georgia’s leading legal societies – the Gate City
Bar Association and the Georgia Association and the Georgia Association of
Black Women Attorneys – to educate the public on the importance of assuring
that our judiciary continues to be accountable and representative.
The members of our respective
associations have had a longstanding interest in assuring accountability at all
levels of government, but particularly the judiciary. We believe that, to be accountable, the bench
must be populated with highly qualified individuals who are representative of
the communities that they serve.
Judicial diversity promotes impartiality by ensuring that no one
viewpoint, perspective, or set of values can persistently dominate legal
decision making. As Judge Richard Posner
has observed, a diverse judiciary “is more representative, and its decisions
will therefore command greater acceptance in a diverse society than would the
decisions of a mandarin court.[1] Judge James Wynne has noted that a lack of
diversity poses a significant challenge for a judicial system that passes
judgment on issues affecting African-Americans, women and other minorities.[2]
The goal of a representative
judiciary is far from being realized in the courts which most directly affect
the people of Georgia. To the contrary, the State’s historic progress in the
direction of a representative judiciary has stalled and, in some cases, it has
been reversed.
Federal Judicial Appointments
The State’s federal courts
provide an instructive example. While
African-Americans comprise over 31% of the State’s population, they comprise
only 19% of the State’s active federal judges.
The U.S. District Court for the Northern District of Georgia presents
the best opportunity to remedy this disparity, as it has the largest number of
judicial positions, the largest number of judicial vacancies and, by far, the
largest number of African-American lawyers.
Out of the thirty-five (35) judges who have been appointed in the
Northern District of Georgia since the court’s inception in 1948, only three
have been African-American. At any given
time, the Court has had only one full-time African-American Judge. Each judge
was appointed only after the retirement of the retirement of another active
African-American Judge. Judge Horace
Ward, 1979 Carter appointee, assumed senior status in 1993 and was succeeded in
1994 by Judge Clarence Cooper. After
Judge Cooper took senior status, he was succeeded by Judge Steve C. Jones, who was recently appointed by
President Obama. There has never been an
African-American female appointed to this court or other federal court in
Georgia.
Georgia’s organized African-American
bar is uniquely positioned to assist in identifying outstanding judicial
candidates of diverse backgrounds. Bar leaders have long pointed to the
numerous and long-standing vacancies on the U.S. District Court for the
Northern District of Georgia as an
opportunity to remedy the court’s lack of diversity. Sadly, however, the process of filling the
current vacancies on the Northern District of Georgia has involved little in
the way of consultation with the organized African-American bar. For example, when
the White House recently asked a group to come to Washington to address the
logjam in federal judicial appointments, not one African-American attorney from
Georgia was asked to participate in the meeting. It appears that those most involved in the
process have had little exposure to many of the great lawyers who are known to
the organized African-American bar.
Such a flawed process has the
potential to produce a highly unfortunate outcome. In this connection, the recent agreement
which the President has reportedly been asked to approve is viewed as highly
disturbing. The President’s previous
nominates of two African-American females having been returned to him, this
reported agreement would involve the addition of four new district judges, one
of whom is known for his advocacy against voting rights and in favor of voter
suppression and only one of whom is an African-American female. The resulting African-American percentage of
Georgia’s federal bench would be 20%, still far below a level that would be in
any way representative.
While Georgia’s senators may have
previously blocked African-American female nominees to the bench, the
Administration should not capitulate to a compromise that decreases the number
of African-American female nominees to one.
Rather, the Administration should nominate and support two exemplary
African-American female candidates who live and practice in the Northern
District of Georgia and who are sensitive to the community’s concerns regarding
important issues such as discrimination, voting rights, and the sentencing of
criminal defendants.
State Judicial Appointments
The need for judicial diversity
is equally keen in the Georgia’s state-level trial courts. While the Georgia Constitution provides for
an elected judiciary, it also empowers the Governor to fill mid-term vacancies
and, consequently, the overwhelming majority of judges in the State - including
in the Fulton County Superior Court - reach the bench through gubernatorial
appointment.
In 1988, six (6) of the 137
Superior Court judges in the State’s 45 judicial circuits were
African-American. That was the same year
that State Representative Tyrone Brooks instituted litigation under Sections 2
and 5 of the Voting Rights Act, challenging the at-large method of electing
superior court judges, as well as the failure of the State to obtain pre-clearance
under Section 5 for newly created judgeships.[3] The settlement in the Brooks litigation, although not approved by the General Assembly
would have mandated the appointment of a minimum number of African-American
judges, required the State to maintain a racially diverse judiciary, and
established continuing federal jurisdiction over enforcement of the terms of
the settlement. Governor Miller decided
to honor the spirit of the Brooks settlement and appointed several outstanding
African-American judges to the Courts of the State. For the first time in history, the judiciary
began to reflect the diversity of State.
By 2002, eight (8) of the 18 judges on the Superior Court of Fulton
County, or 44%, were African-American.
This has all changed, as is
illustrated with the changes on the Superior Court of Fulton County, which is
the State’s largest and most powerful state-level trial court. Because the
State Capitol is in Fulton County, constitutional challenges and appeals from
State agency decisions are heard in this court.
In addition, emergency hearings and/or stays of executions in death
penalty matters are decided in this court.
Over the past decade, however,
the Fulton County Superior Court has experienced a steady erosion in racial
diversity. In the last decade, not one
African-American attorney has been appointed to the Fulton County Superior
Court bench. Instead, every vacancy
which has occurred as a result of resignation or retirement has been filled
with a white appointee. The last
African-American female judge was appointed to the Fulton County Superior Court
bench in 1996, and the last African-American male judge was appointed in
2002.
According to the 2010 Census,
Fulton County’s population is 44% African-American. As of 2012, however, only 6 out of 20 judges
on the Superior Court were African American, or 30% (down from 44% in 2002).
The recent erosion in judicial
diversity is certainly not due to a lack of qualified African-American
candidates. Fulton County is home to
most of the State’s several hundred African-American lawyers. Over the years,
these lawyers have included the first African American woman to be admitted to
practice before the U.S. Supreme Court, as well as the lawyers who led the
battles to desegregate the State’s universities, public schools and places of
public accommodation. More recently, the
county’s African-American lawyers have included several trial and appellate
judges, three of Atlanta’s mayors, two Presidents of the Atlanta Bar
Association, partners in every major Atlanta law firm, and the Chief Legal
Officers of major institutions such as United Parcel Service, Pepsico, Inc.,
and The Home Depot, as well of legions of other talented lawyers who play key
roles in the efficient administration of justice.
A Call to Action
We are rapidly reaching a point
at which the notion of a judiciary comprised of the best and brightest legal
minds regardless of race will be no more than a bygone memory. We urge the State to avoid this consequence
by establishing a judicial selection process which achieves accountability
through diversity, by placing more African-Americans on the Judicial Nominating
Commission, and by appointing qualified African-American candidates to the
Superior Courts and other courts of this State.
Meanwhile, judges themselves can play a role by serving out their terms
and allowing the voters a greater role in judicial selection. The justice system belongs to the people,
after all, and they should be encouraged to take on a more significant role in
selecting those who administer justice on their behalf.
Georgia also should consider some
of the more recent steps which other states have taken to pursue judicial
diversity. For example, Arizona has a
constitutional provision requiring its judicial nominating commission to
“consider the diversity of the state’s population; however, the primary
consideration shall be merit.”[4] Maryland has an executive order which
requires that its nominating commission “shall consider . . . the importance of
having a diverse judiciary.”[5] In Missouri, the governing Supreme Court
rules direct that “the Commission shall further take into consideration the
desirability of the bench reflecting the racial and gender composition of the
community.[6]
Several other states have laws
that mandate diversity in the composition of their judicial nominating
commissions. Florida, for example,
requires that “the Governor shall seek to ensure that, to the extent possible,
the membership of the Commission reflects the racial, ethnic, and gender
diversity, as well as the geographic distribution of the population within the
territorial jurisdiction of the Court for which nominations will be considered.”[7] Tennessee law requires the appointment of
“persons who approximate the population of the state with respect to race,
including the dominant ethnic minority population, and gender.”[8] Rhode Island provides that “[t]he Governor
and the nominating authorities hereunder shall exercise reasonable efforts to
encourage racial, ethnic, and gender diversity within the Commission.[9]
Many explanations have been
offered for the current erosion in the diversity of the appointment of judges
to the courts affecting this State.
Whatever the cause, it can only be remedied by deliberate action on the
part of the appointing officials and the voters. While the appointing authorities have bemoaned
the difficulties that they have encountered in achieving judicial diversity,
their lack of success may in some degree result from the ad-hoc manner in which
they have pursued this goal. However, it
may well be that results may be more effectively pursued through actually
codifying the pursuit of judicial diversity in the appointment process in the
manner that other States have done.
But these prescriptions will only
be effective if the appointing authorities truly subscribe to the goal of
judicial diversity and accountability and competently pursue that goal. If the appointing authorizes are lacking in
the necessary commitment, or in the necessary competence, then we can take
comfort in the fact that judicial selection is not the exclusive domain of
elected and appointed officials: Rather at least at the State level, the voters
have a meaningful role to play, and they should be encouraged to take that role
seriously.
[1]
Richard A Posner, Law, Pragmatism and
Democracy 71 (2003).
[2]
James A. Wynne and Eli P. Mazur, Judicial
Diversity: Where Independence and Accountability Meet. 67 Albany Law Review
755 (2004).
[3]
Brooks v. State Board of Elections,
775 F. Supp. 1470, S.D. Ga. 1989) aff’d sub nom. Brooks v. Georgia State Board of Elections, 498 U.S. 916, 111 S.Ct.
288, 112 L.Ed. 2d 243 (1990) and aff’d sub nom. Georgia State Board of Election s v. Brooks, 498 U.S. 916, 111
S.Ct. 288, 112 L.Ed. 2d 243 (1990).
[4]
Ariz. Const., Art. VI, § 36.
[5]
Md. Exec. Order No. 01.01.2007.O8.
[6]
Mo. S.Ct. R. 10.32(f)(2008).
[7]
Fla. Stat. Ann. § 43.291(4) (2008).
[8]
Tenn. Code. Ann. § 17-4-102(c) (2008).
[9]
R.I. Gen. Laws § 8-16.1-2(a)(3) (2006).
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