Letter to the Editor:
True Diversity Isn't Tokenism:
It Builds Institutions and Merits Public Trust
Daily Report
July 10, 2014
To the Editors:
Robert
Highsmith, a member of the state Judicial Nominating Commission, wrote a letter
to the editor recently to defend the record on diverse appointments to the
judiciary under the last two governors. ("Judicial diversity is strong under Georgia
Republicans," Daily Report, June 18). His letter comes in
response to a Daily Report article about a Continuing Legal Education program,
sponsored by several organizations at the State Bar of Georgia annual meeting,
of which Mr. Highsmith was a panelist.
The
purpose of the CLE, titled "Diversity in the Judiciary," was to have
a conversation about the issue as it pertains to Georgia's state and federal
courts. The seminar started with a historical perspective provided by several
attorneys and a Georgia legislator about what the face of the judiciary looked
like prior to the Brooks litigation and what has happened to the courts
since that time. The ensuing dialogue was designed to raise awareness amongst
members of the bar about the lack of diversity in certain courts and the
eroding diversity in others.
After
a discussion about the court history, the panel on which Mr. Highsmith
participated provided solutions that attorneys could implement to make
diversity on the bench a priority and an achievable objective. The CLE was not
intended to be an attack, as represented by the Daily Report headline, on the Judicial Nominating
Commission, the governor or anyone connected with the process that appoints
judges to the Georgia courts.
With
that backdrop, Mr. Highsmith's letter purports to refute "harsh
words" by several of the CLE panelists by focusing on a few individual
appointments over a 12-year period. The appointments of Justice Harold Melton
by Gov. Sonny Perdue in 2005 and of Judge Carla McMillan to the Court of
Appeals by Gov. Nathan Deal were cited as examples of a strong record of
diverse judicial appointments. Reference was also made to the appointments in
DeKalb County of Judges Eleanor Ross and Dax Lopez to the State Court and Judge
Asha Jackson to the Superior Court.
Mr.
Highsmith's letter further highlighted three other female jurists appointed in
DeKalb and Fulton counties in addition to Judges Ross and Jackson as well as
the appointments of Judges Eric Richardson and Fred Eady to the State Court of
Fulton County. He ended by touting the qualifications of the white male judges
appointed to the Fulton Superior Court bench.
Not
only is his reliance on a few noteworthy appointments predictable, but he also
fails to consider the quantitative analysis of those appointments, the context
of those appointments and to which courts those appointments were made.
Notably,
Mr. Highsmith fails to acknowledge the growing lack of diversity of Georgia's
judiciary. The state of Georgia is growing—the current population is estimated
to be nearly 10 million. According to 2012 census figures, 51.1 percent of
Georgia's population is female, 31.2 percent is African-American, 3.5 percent
is Asian and 9.2 percent is Hispanic. Thus, more than 4.5 million of Georgia's
residents are female and more than 3 million are African-American. People of
Asian and Hispanic descent comprise more than 10 percent (or nearly 1 million)
of the state's residents. It is in that context that claims about diversity
must be considered.
The
record of diverse appointments under the current governor leaves much room for
improvement. Here are some sobering facts:
•
Less than 5 percent of our current governor's judicial appointees to courts
across the state have been African-Americans.
•
Currently, African-Americans represent less than 10 percent of all of the
Georgia Superior Court judges.
•
Less than 2 percent of the members of the Judicial Nominating Commission on
which Mr. Highsmith serves are African-American.
A
few anecdotes about the context of the appointments and the courts to which the
appointments were made, or in some cases not made, demonstrates the dysfunction
of the judicial selection process in our state:
•
Judge Asha Jackson, cited by Mr. Highsmith, was appointed in DeKalb County, but
she was appointed only after two non-diverse gubernatorial appointees in the
county lost bids for their re-election. One of those defeated appointees was
subsequently appointed to the Fulton County Superior Court bench.
•
Fulton County's most recent population estimate is 984,293—of that number 44.6
percent are African-American. In the last 12 years, three African-American
judges have left the superior court bench in Fulton County without completing
their terms of office, and neither Gov. Perdue nor Gov. Deal appointed a single
African-American to fill any of those seats. As a result, the diversity on the
Fulton County Superior Court bench is in sharp decline—in 2002,
African-Americans held 44 percent of the judgeships, but now they hold only 30
percent.
•
Another perfect example of the lack of diversity in the judicial appointment
process is found in Muscogee County/Columbus. Of the more than 200,000
residents of Muscogee County, 46 percent are African-American. When the
county's only African-American superior court judge recently retired, Gov. Deal
appointed a non-diverse individual to fill his seat, leaving a county with such
a large African-American population without a single African-American superior
court judge.
•
Mr. Highsmith spoke at the state bar about the current governor's preference
for moving judges up. Yet when one of the African-American Fulton State Court
appointees mentioned by Mr. Highsmith applied for a superior court seat, he was
not appointed to the vacancy.
While
no one disputes the character or quality of the judges appointed, the pattern
of appointments to the courts in this state reflects diminishing diversity in
communities with significant minority populations.
The
judiciary has neither the sword nor the purse at its disposal. Its authority
relies upon the trust of the people. When the most powerful courts in a
community are not inclusive, it breeds an inherent distrust and alienation. And
in communities where inclusion is declining, the problem is exacerbated.
The
concept of diversity comes from a recognition that communities are strongest
and government has the highest claim to legitimacy when it reflects the people
it serves at a level that is meaningful. When a community does not have the
opportunity to vote on the initial selection of judges on the courts—which has
been the pattern over the last decade—it is even more imperative that the
process used to select judges be fair, transparent and inclusive.1
In
addition to considering diversity and inclusion when making appointments,
governors should also consider the courts to which candidates are appointed.
Every court in Georgia provides a service to its citizens. But the courts that
are the heart of our communities are the superior courts. not every community
has a state court, but there is a superior court in every county in Georgia.
Superior
court judges decide fundamental issues that affect communities, such as the
terms of divorces and who gets custody of children. When there are disputes in
communities about taxes, elections, or the powers of government, they are heard
by superior court judges. The true test of the commitment to diversity in the
judiciary is what happens with appointments to those courts.
When
communities elect their leaders, including judges, they get the government they
choose. They have the power to choose to embrace diversity through their vote.
While the Georgia Constitution mandates the election of judges, as Mr.
Highsmith recognized, most judges take office through appointment. The power of
incumbency is hard to overcome and it is for that reason that a commitment to
diversity in appointments matters.
When
a governor is given the responsibility of filling a judicial vacancy it is
unlike any other appointment. When appointing to the executive branch he is
building his team. But when filling judicial vacancies he is standing in for
the electorate of a community. Consequently, he has an obligation to consider
the community's makeup—not merely rewarding loyalty or cementing partisan
advantage.
The
usual response to calls for diversity is to assert that one is choosing the
most qualified. The recent erosion in judicial diversity is certainly not due
to a lack of qualified diverse candidates, but it appears that those most
involved in the judicial nomination process have had little exposure to many of
the great lawyers who are known to the organized African-American bar and who
would make outstanding jurists.
A
bench that is regressing in its inclusivity simply cannot be justified. There
are thousands of lawyers from diverse backgrounds across the state and 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.
Previously,
African-American lawyers were appointed as trial and appellate judges; three of
Atlanta's mayors, two presidents of the Atlanta Bar Association, partners in
major Atlanta law firms, and the chief legal officers of major institutions
such as United Parcel Service, Pepsico Inc. and The Home Depot are
African-American. There are legions of other talented lawyers who play key
roles in the efficient administration of justice. Any such claim that seeks to
set up a conflict between merit and diversity is not real.
Dr.
Martin Luther King Jr. described what was then a new tactic being employed in
the struggle for civil rights. The tactic he named was tokenism. "A judge
here and a judge there; an executive behind a polished desk in a carpeted
office; a high-placed government administrator with a toehold in a cabinet
post."2
The
goal of tokenism was to have a few stand for the many. It was yet another method
of holding on to power and forestalling systemic change.
Tokenism
relies upon the symbolism of isolated individuals. It seeks to retain power and
buy peace with gestures. Diversity strives to build institutions that include
and therefore merit the trust of the broad spectrum of the communities they
serve.
A
commitment to diversity requires one to consider whether, in a state with more
than 3 million African-Americans, one African-American Judicial Nominating
Commission member is sufficient to earn the trust of African-Americans.
Is
the appointment of a judge here and a judge there, but few in those positions
that command real power within their communities, consistent with a commitment
to a diverse judiciary? When Muscogee County's more than 80,000
African-American citizens enter their superior court where there are no
minority judges, are they likely to have confidence in the institution? The
answers to those questions are the test of diversity.
Mawuli
Mel Davis
Rev.
Francys S. Johnson
Attorney
panelists,
CLE
seminar "Diversity on the Bench"
Thelma
Wyatt Moore, president/CEO
Bettianne
Hart, vice president
Advocacy
for Action Inc.
Charles
Johnson
Suzy
Ockleberry
Co-chairs,
Advocacy
for Action
Political
Action Committee
1
"Enhancing Diversity in an Appointive System of Selecting Judges,"
Leo M. Romero, 34 Forham Urb. L.J. 485 (2007)
2
"Why We Can't Wait," Dr. Martin Luther King Jr. (1963)
R. Robin McDonald
