Tuesday, March 5, 2013

Judicial Diversity Aids Legitimacy

Judges on UGA panel agree that public confidence is enhanced when courts reflect the faces of the public.

[Reprinted from the Daily Report, March 4, 2013]
By Greg Land
DeKalb County State Court Judge Dax Lopez said that, even as a Latino who spent most of his life in Georgia, he was surprised to learn just how dismissive some of his fellow jurists could be toward minorities and immigrants.
"Coming to the bench as a really young judge - I was 34 - my first judges' meeting was a real eye-opening experience," said Lopez. As he listened to judges from some of the state's rural circuits discuss their courtroom practices, he was struck by attitudes that ranged from indifference to hostility toward such defendants.
"There was zero sympathy," said Lopez, and some judges boasted that they actively sought to ensure the harshest outcome possible,
"It was like, 'I'm going to affirmatively hurt this person,'" recalled Lopez, appointed to the bench in 2011.
Lopez spoke at a panel Thursday at the University of Georgia School of Law. Diversity on the bench was the topic for the panel, which also included Georgia Supreme Court Justice Harold Melton, state Court of Appeals Judge Anne Elizabeth Barnes, Athens-Clarke County Chief Magistrate Judge Patricia Barron and moderator Robin Frazer Clark, president of the State Bar of Georgia.
Teeing up the issue, Clark cited a column that former Georgia Chief Justice Leah Ward Sears wrote for the Daily Report last year decrying the lack of diversity on the bench. Of 464 judgeships statewide, wrote Sears, about 100 were occupied by women, 53 by African-Americans, and—at that time—one was Asian and one Hispanic. (Governor Nathan Deal has since appointed an Asian-American woman, Carla Wong McMillian, to the Court of Appeals.)
Do the varied life experiences offered by one's race or sex really matter when it comes to fulfilling one's duties as a judge, asked Clark, and is a diverse bench necessarily a good thing?
Barron, whose circuit's bench is evenly divided between male and female judges, noted that she is the only African-American judge serving the Athens-Clarke County community at present. Diversity on the bench, she said, is more than a "good and desired" goal: "it has to do with the ability of the court to represent the population."
"I think the public's confidence in any court is enhanced by the ability to reflect the community," agreed Lopez. Among DeKalb's judges, he said, "we have seven judges who speak five different languages, one of only two Asian judges in the state, and the only Hispanic."
"I think it gives us a lot of credibility as a court," said Lopez.
Melton said that while the appellate courts are, in Clark's words, "some steps removed" from the general public, it is equally important that they, too, reflect the faces of that public. "Sometimes," he said, "the only evidence they have is looking at the snapshot of that court."
Melton also addressed complaints that, under the current and past administrations, minority appointments to the bench have been few and far between.
The justice, who served as executive counsel to Governor Sonny Perdue before being appointed to the state's high court, agreed that Georgia's first Republican governors since Reconstruction have appointed fewer African-Americans to the bench than their Democratic predecessors.
"One thing we need to talk about is party diversity," said Melton. "I know there's a lot of conversation about that. One conversation is, 'What's the governor going to do?' We need to ask, What are ???we going to do?'"
"There's a lot of discouragement in the African-American community about working with Republicans. I saw that in the governor's office first-hand," Melton said. The only time the governor heard from African-American lawyers or bar associations was when a judgeship came open, he said; meanwhile, other lawyers and organizations had been working to make contacts and establish relationships with the administration.
"So others have been working diligently, and you're at a disadvantage if you take a hands-off approach."
"I'm not saying we should compromise our views," said Melton, "but we should be more involved."
Barnes, too, said a lack of diversity on the bench could shadow the courts' legitimacy in the eyes of the public.
"It's not just that the fact that judges are fair and impartial," Barnes said. "When we see a panel of people that don't look like us, and they all look like each other, it affects the perception of the public. If they see someone on the bench and say, 'Hey, she looks like me,' I think it enhances the perception of justice."
Clark recalled the furor stirred up during the confirmation hearings for U.S. Supreme Court Justice Sonia Sotomayor when senators read the text of a speech she gave in 2001.
"Personal experiences affect the facts that judges choose to see," said Sotomayor in the speech. "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."
"Many called those words provocative, and I would agree," said Clark. But, she asked, "if we agree that it is diversity we desire," will a judge's background and experiences shade what a judge "chooses to see"?
Nodding vigorously, Barron noted that her magistrate duties frequently placed her in a position of hearing cases over simple assaults involving low-income, African-American women fighting, often over a man.
"My experiences as an African-American woman help me understand that behavior," said Barron. "Were I not there, those women would probably not have been listened to, maybe not even represented in court, and the outcome may have been different."
"Everyone is responsible for their actions, of course," she said, but "in the 12 years I've been on the bench, I think there's been a transition because of my background."
Barnes said she didn't find Sotomayor's comments controversial, because she thought they had been misconstrued.
"I focus on the word 'wisely,'" she said. Barnes recalled her history as the first woman to win statewide election to the bench without having first been appointed. While some of her friends were very supportive, she recalled, others dismissed her chances; when her first bid came up short, she said, she tried again and won.
"I think what Justice Sotomayor was driving at is that we all have experiences." The key, she said "is whether we gain wisdom from our experiences."
Failure to do so, Barnes said, may result in a legal judgment that doesn't reflect justice.
"It may be legally correct," she said, "but it won't be just."