Saturday, September 28, 2013

A Call to Action on Judicial Diversity

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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