True Diversity Isn't Tokenism

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)