JNC Members: Bench Diversity Not Black and White
Daily Report, October 23, 2014
A member of the Judicial Nominating Commission told a group of Asian-American lawyers seeking advice on how to get on the bench that selection of judges is "an inherently political process."
"Not Republican-Democrat politics," Scott Delius added Tuesday night. "Personal politics. Are you well-liked? Are you well-connected?"
Delius' comments reflected the overall theme delivered by three JNC members during the Georgia Asian Pacific American Bar Association's discussion on how to get on a short list the JNC sends to the governor for consideration when a judicial vacancy arises.
The event was held in McKenna Long & Aldridge's SunTrust Plaza offices, and included a spirited discussion of diversity—both on the bench and among the JNC's members—moderated by DeKalb County State Court Judge Alvin Wong.
He promised to address "the white elephants in the room" as he genially grilled JNC cochairman Pete Robinson and members B.J. Pak and Delius concerning the panel's method of selecting potential judges, and whether that system was as fair as it might be.
Wong—Georgia's first elected Asian-American judge—was joined by Court of Appeals Judge Carla Wong McMillian, U.S. Magistrate Judge Justin Anand, Duluth Municipal Court Judge Chung Lee and Meng Lim of Bremen, who in August was elected to the Tallapoosa Circuit Superior Court.
Robinson, the managing partner of Troutman Sanders' Atlanta office, cochairs the JNC with McKenna partner Randy Evans.
Robinson kicked off the discussion by laying out the steps for filling a vacancy on a Georgia court. Robinson said there was generally a six-week process between the time a seat opens up and when the 21-member panel sends a short list of three to five names to Gov. Nathan Deal.
The detailed questionnaires and résumés that candidates submit are important, said Robinson, but so is input from local bar associations and organizations.
"We absolutely solicit interest groups," said Robinson. "We spend a lot of time listening to them and appreciate this input, and getting calls from someone suggesting or opposing a candidate."
Such calls should be brief, he noted: "I'm not going to spend 30 minutes listening to someone tell me what an SOB someone is."
Another key are the interviews with candidates who make the first cut. They last only about 10 minutes, "but those 10 minutes are very important," said Robinson. "There's two or three minutes of talking about yourself, a few minutes of Q&A with the members, then Randy or I will close it off with a question."
"It's a very simple process," said Robinson, "and the standard that I use is ... I'm looking for someone who is smart and fair, maybe a little more weighted to fair."
Judges must be compassionate, said Robinson, and understand that the people who appear before them are already under stress.
“My one fundamental fear is, ‘Is that judge going to develop Robe-itis?’” he said.
“If you come in and tell me how smart you are, that you’re smarter than all the other nominees or applicants, you’re never going to make the list,” Robinson said.
Robinson said the current JNC is composed of 17 men and four women. It includes four African-Americans and one Asian-American: Pak.
Wong used that statistic as his jumping-off point for the diversity discussion.
"What do you say about the lack of [minority] representation on the commission?" he asked the panelists. Would it make sense to have more minorities appointed?
Perhaps, said Delius, but the makeup of the judiciary itself would seem more important than the makeup of the JNC. Delius circled back to Robinson's comments concerning the need for ethnic bar associations and organizations to weigh in.
"I want to underscore what Pete said about how important what these groups have to say is," he said. Such input may well decide the panel's ultimate decision, said Delius.
Some bar associations rate candidates' qualifications, Robinson added, and he keeps careful notes of such ratings and who provided them.
"The wider the support, the better," Robinson said.
Pak, a Republican member of the state House of Representatives, said the makeup of the JNC was generally more a product of whether appointees were known to the governor or people whose opinions he values.
"If you look at the composition of the JNC right now, it's not really partisan," said Pak. "It's more like, does the governor know that person, are you a known commodity?"
While the African-American bar is well-established in state and local bar associations, Pak said, "We haven't done a good job in the Asian community."
Pak urged his listeners to become active in other bar associations as well as the ethnic organizations.
"Having allies on other bars is important," he said.
Delius said, "It's the person that walks into the room that no one's heard of who is going to have a hard time."
Wong asked, given criticism of the JNC's own lack of diversity, "should it at least appear more diverse? Does that [suggestion] ever get talked about, sent up the food chain?"
Pak said his own appointment pointed to Deal's desire to broaden the demographics of the JNC and the judiciary as a whole.
"I know they're very concerned about it, because they call me all the time for candidates," Pak said. "We need to get the judiciary to reflect the community; I'm not so worried about the makeup of the JNC."
Delius said the JNC will often look at a slate of candidates and wonder why more women and minorities aren't included, and often conclude that qualified candidates are simply not applying.
"People need to step up and apply," Delius said. He cited a recent vacancy in which one Asian, one African-American and one Hispanic had applied along with a lengthy list of white candidates.
"You can't sacrifice quality and merit just to get somebody on there," said Delius, citing people "who are really qualified," but are unwilling to step out of rewarding practices to join the bench.
"It's the pipeline that's the problem, not the picking," Delius said.