Sunday, April 20, 2014

Lawyers of Conscience Struggle to Make Georgia's Courts More Representative

As early as 1976, the Gate City Bar Association, the Georgia Conference for Black Lawyers (a group which no longer exists) and the Georgia Association of Black Women Attorneys (GABWA) have worked separately and, at times, collectively to address and raise awareness about a historic dilemma – that, judicial accountability requires that the Nation’s courts must be representative of the communities that they serve; that judicial diversity promotes impartiality by ensuring that all viewpoints, perspectives and values are part of the decision-making process; but that, although the American South is blessed with a significant number highly talented lawyers of diverse backgrounds, there has been a stunning lack of racial and ethnic diversity on the region’s State and federal courts. 

The organized black bar began to play an essential role in galvanizing community involvement in the selection of judges at the State and federal levels.  Early victories included the appointments of Horace T. Ward and William Alexander to the State Court and Superior Court of Fulton County.  In the Carter years, the White House and Georgia’s U.S. Senators actively sought and received public input on the selection of federal judges, and the leadership of Gate City and the Georgia Conference worked tirelessly to assure that the community was engaged in this process, which ultimately resulted in the appointment of Judge Ward to the U.S. District Court for the Northern District of Georgia. 

The Gate City Bar placed significant emphasis on the importance of judicial elections, as well as appointments.  In 1980, Gate City published the results of a poll which gave its highest rating to Clarence Cooper, who went on to become the first African American judge in the history of the State to take office by county-wide election.  As early as 1988, Gate City began to support the Brooks litigation, a challenge to the at-large method of electing state court judges, claiming that the at-large approach diluted minority voting strength.[1]  Despite the dismissal of the suit after seven years of litigation, Governors Zell Miller and Roy Barnes appointed a number of diverse judges, some of the State’s best and brightest practicing attorneys, and the State’s courts at last began to reflect the rich diversity of Georgia’s communities.  However, this progress largely ground to a halt with the election of Sonny Perdue in 2002.  Since that time Fulton County, which has the State’s largest concentration of lawyers of color, has seen no persons of color appointed to its Superior Court.


The recent paucity of diverse appointments at the state level has been mirrored at the federal level. No judge of color has ever been appointed to the U.S. District Court for the Southern District of Georgia.  Although there are eight positions on the Middle District court, on one person of color has ever served on that court.  Even the Northern District of Georgia has never had more than one full-time judge of color at any given time.  Judge Clarence Cooper’s decision to take Senior Status left the Northern District court for a time without any judges of color in the early part of President Obama’s term.  In early 2010, several Gate City representatives met with members of Georgia’s House delegation to discuss this situation and, shortly thereafter, four members of Congress sent a letter asking the White House Counsel to meet with Gate City Bar leaders to discuss the issue. 

On June 14, 2010, the President announced his intention to nominate two individuals to some of the existing vacancies, including one white lawyer who resided in the Northern District of Georgia and one African American judge who resided in another district.  In July of 2010, Gate City’s President co-authored an Op-Ed which posed the question: “Are there no Qualified African American Lawyers in the Northern District of Georgia?”  This Op-Ed, specifically calling for the appointment of one or more African-American females, appeared in the Atlanta Daily World and the Atlanta Journal Constitution, and resulted in a meeting of Gate City’s President and Past Presidents with the White House Counsel.  Shortly after this meeting, the Senators announced two candidates whom they could support (including an African-American female), and the White House responded by nominating two African-American females, whose names were ultimately withdrawn.


In January, 2012, representatives of GABWA met with Governor Nathan Deal to talk about diverse appointments to the Judicial Nominating Commission (the "JNC"), the body which recommends attorneys for appointment to the Georgia State courts when there is a vacancy.  Despite a commitment to address the issue, Governor Deal did not make any additional appointments to the JNC until November, 2013, when he appointed an Asian-American (brining the total minority representation on that body to two out of the Commission’s twenty-one members). 


In May, 2012, after nearly twelve years of quiet diplomacy with Governors Perdue and Deal and waiting for a change in the landscape of non-diverse appointments to Georgia’s courts, the current Presidents and several past Presidents of Gate City and GABWA joined forces with a group of elected officials, community leaders and clergy to publish an Op Ed in the Daily Report entitled “Will the Last African-American Judge Please Turn Out the Lights?”  Following the publication of this Op-Ed, the Current and Past Presidents of Gate City and GABWA, together with Rev. Joseph Lowery, Rep. Tyrone Brooks and others, convened a news conference on the steps of the Fulton County Courthouse, calling on Governor Deal to honor his commitment to diversify the JNC and consider diversity when making judicial appointments.  Shortly thereafter, representatives of Gate City and GABWA met with members of the JNC to get an understanding of the Commissions inner workings and to ask them to consider diversity in making their recommendations.  Up until that time, these events represented perhaps the most significant collaboration between Gate City, GABWA and community-based organizations addressing the diminishing diversity on Georgia’s courts.

Following the events of May, 2012, current and former presidents of Gate City and GABWA continued to search for additional ways to bring their collective efforts to bear on the issue of judicial diversity.  What followed was a period of considerable consultation with leading figures in the bar, including partners in major law firms, government lawyers, in-house counsel, sole practitioners, clergy and elected officials, in an effort to devise a long-term strategy and plan of action.  These discussions resulted in a collective recognition:

·      that the goal of judicial diversity must not be pursued solely through the avenue of gubernatorial appointments;

·      that more significant change might well be brought about through the electoral process;

·      that, for the electoral process to be effective, a new organization was needed for the purpose of educating the public on the importance of judicial elections, as well as appointments;

·       that a concerted effort is necessary to assure that the voting public has quality candidates from which to choose; and

·      that a sustained effort should be made to assure sufficient support for qualified candidates. 

The result was the formation of two organizations in January 2013:

·       Advocacy for Action, Inc. (“AFA”), a not-for-profit social welfare organization whose sole purpose is public education; and

·       AFA Fund (the “Fund”), a separate political action committee PAC, whose purpose is to affect the outcome of contested judicial elections. 

Why is there a need for AFA and the Fund?

The need for a diverse and representative judiciary is widely recognized and accepted.  We can also agree that judges should be selected on the basis of merit – we want out best and brightest lawyers serving on our courts.  Moreover, these two objectives - considering diversity in electing or appointing judges and having our best legal minds in the judiciary – are not mutually exclusive concepts that are at odds with each other.

Our nation was founded on the principle that, if government is to be accountable to the people, it should be administered by individuals who are representative of the communities they serve.  The principle is just as applicable to the courts as it is to other aspects of government.  Diversity in our courts has a positive impact on the public perception of the fairness of the judiciary.  It enhances respect for the decisions made by our courts.  It enhances the quality of justice by assuring that differing viewpoints are brought to bear in deciding on important issues can have life or death consequences for the litigants. 

Although the need for a diverse judiciary is widely accepted in principle,  progress toward achieving that goal has largely stalled over the last twelve years. Until November of 2013, there was only one African-American among the 21 members of the JNC. The State is blessed with a large number of highly qualified African-American lawyers from which to choose but, over the last twelve years, very few have been appointed. Although African-Americans comprise over a third of Georgia’s population, less than 9% of the State’s judges are African-American.  Most of Georgia’s counties have never experienced the appointment of an African-American judge.  In Bibb County, where African-Americans comprise 53% of the population, the first African-American female was not appointed until very recently.  In Fulton County, where African-Americans comprise at least 44% of the population, and which is home to the State’s greatest concentration of African American lawyers, no African-American has been appointed to the Superior Court bench since 2002. 

Over the last twelve years, the appointment process has proven ineffective as a means of bringing about a diverse judiciary.  Although African-Americans have applied, few have been appointed.  By now it has become apparent that, if change is to occur, it will require a new approach.  Under our Constitution, the principal alternative for brining about a change is at the ballot box.

It’s a matter of simple democracy: if we have to choose between judges selected by the politicians (on the one hand) and judges selected by the people (on the other), then perhaps it’s time to make our case to the people and put our trust in them.

[1] Brooks v. State Bd. of Elections, 775 F. Supp. 1470 (S.D. Ga. 1989) aff'd sub nom. Brooks v. Georgia State Bd. of Elections, 498 U.S. 916, 111 S. Ct. 288, 112 L. Ed. 2d 243 (1990) and aff'd sub nom. Georgia State Bd. of Elections v. Brooks, 498 U.S. 916, 111 S. Ct. 288, 112 L. Ed. 2d 243 (1990).

No comments:

Post a Comment