Judge Demands the Governor Not Create All-White Bench

Retiring Judge John Allen asks the governor to consider the "face of justice" as he makes appointments

By R. Robin McDonald

 

Daily Report, September 11, 2013

 

 

The sole African-American judge on the Chattahoochee Circuit's Superior Court for the past 21 years has asked Governor Nathan Deal to consider color—the "face of justice"—in filling two seats on the seven-member bench. Judge John Allen, who will retire as the court's chief judge on Oct. 31, wrote in a memo sent to the governor and his Judicial Nominating Commission that an all-white and male judiciary in the Columbus area circuit would be "egregiously unrepresentative of the population served."

In addition to Allen's seat, the governor will appoint someone to a new seat created by the Legislature. The JNC is accepting applications through Sept. 16. Of six nominations the JNC had received as of Sept. 5, at least one was African American—Alonzo Whitaker, chief assistant district attorney in the Chattahoochee Circuit.

Allen, 70, who stepped down earlier this year as chair of the Judicial Qualifications Commission, wrote in the Sept. 5 memo that if the governor follows the pattern of two recent appointments in his six-county circuit, it would create "an all-white male superior court bench". That "would be egregiously unrepresentative of the population served," Allen wrote.

The memo chided the governor for his past appointments, saying, "I am certain you are aware of the 'face of justice' created by your appointments to the bench."

In 2011, Deal appointed a white man, Art Smith, to the Chattahoochee Circuit to replace Douglas Pullen, who stepped down to end an ethics investigation by the JQC. In 2010, Governor Sonny Perdue appointed William Rumer, a white Columbus lawyer, to replace Robert Johnston after Johnston stepped down to end a JQC investigation.

Allen's concerns mirror those of a coalition of leaders from metro Atlanta's African-American legal community who last year publicly challenged what they said was a decade-long failure by the state's political leadership to appoint African-Americans to judgeships. The result, they said, has been a decline in the number of African-Americans holding state judicial posts.

A spokesman for Deal told the Daily Report last year that the governor "takes into consideration the importance of diversity" in political appointments, while noting that the governor's "first priority is selecting first-rate jurists."

A Deal spokeswoman said Tuesday: "The governor interviews a short list of thoroughly vetted individuals provided by the JNC. The commission members are distinguished members of the legal profession from throughout the state, and they recommend the candidates they deem most qualified to serve the people in their jurisdiction. Diversity is one of many important considerations in these decisions. Gov. Deal has not and does not discriminate during his decision process. He chooses the best person for the job regardless of their gender or race."

JNC co-chair Randy Evans said, "Diversity plays a role in the decision-making process. We work very hard in that regard. The tough part is that ... in many situations we don't have any minority applicants, any Asian-American applicants, any African-American applicants. It's hard to pick one when nobody applied or the ones who applied didn't meet the statutory requirements for the position. We are very mindful of it. We are sensitive to it. We are diligent about it. But at the end of the day, all of it depends on the applicant pool.".

Allen included in his memo data from the 2010 Census showing that in Muscogee County, the circuit's largest county and home of Columbus, the population is divided nearly evenly between African-Americans and whites. In the six counties that comprise the circuit, there are 134,156 whites compared to 104,546 African Americans, according to Allen's memo.

"Unquestionably, judges are influenced in their notions of justice by their unique life experiences," Allen wrote. "It would be a travesty to the population served if their justice is reflected only in terms of the 'white male' experience."

Allen, who was appointed to the Superior Court by Governor Zell Miller in 1993, told the Daily Report he has not received any response from Deal or the JNC. "I wrote the letter so that they might have the benefit of the viewpoint of a sitting judge here," he said. "I intended it solely as ... a viewpoint of this judge. But I think it's a viewpoint that expresses very accurately what the situation is when it comes to the judiciary in this circuit."

Allen said he decided that diversity "needed to be in the forefront and minds of the persons who choose who will sit as judges. ... I don't want the governor or his committee to sit there and not have as a part of their thought process that this judiciary ought to be representative of the body it serves. And based on all of the appointments they have made in recent years, obviously they have not considered that. Nobody has put it in their faces."

"It's almost an indictment of females and African-Americans not to be chosen, because they are saying you are not qualified," Allen continued. "And it's just not true."

"To have these concerns presented to them doesn't mean you select a person simply because they are a minority of any sort," he said. "I'm not arguing any quota. I'm just arguing that the full spectrum is not represented in this district."

If the Chattahoochee Circuit has a bench of only white males, "The people who are being judged don't look like the bench. If they did, it would increase their belief in the fairness of the system. There is no such thing as white and black justice, but there are perspectives you bring to the bench. There are definitely differences, and that's what judges express."

This article originally appeared in the print edition under the headline “Judge demands the governor not create all white bench.”

rmcdonald@alm.com