Introduction
Communities are strongest, governments have the
highest claim to legitimacy, and institutions are most accountable, when those who
administer the institutions of government are talented individuals who are
meaningfully representative of the communities that they serve.
This principle is as applicable to our courts as to
any other institution. Judicial
diversity promotes impartiality by ensuring that no one viewpoint, perspective,
or set of values can persistently dominate legal decision making. As Judge
Richard Posner has observed, a diverse judiciary “is more representative, and
its decisions will therefore command greater acceptance in a diverse society
than would the decisions of a Mandarin court. Judge James Wynne has noted that
a lack of diversity poses a significant challenge for a judicial system that
passes judgment on issues affecting African-Americans, women and other
minorities.
The goal of a representative judiciary is far
from being realized in the courts which most directly affect the people of
Georgia. To the contrary, the State’s historic progress in the direction of a
representative judiciary has stalled and is in steady retreat.
Georgia’s Steady Decline in Judicial Diversity
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.
In 1988, six (6) of
the 137 Superior Court judges in the State’s 45 judicial circuits were
African-American. That was the same year that State Representative Tyrone
Brooks instituted litigation under Sections 2 and 5 of the Voting Rights Act,
challenging the at-large method of electing superior court judges, as well as
the failure of the State to obtain pre-clearance under Section 5 for newly
created judgeships. The settlement in the Brooks
litigation, although not approved by the General Assembly would have mandated
the appointment of a minimum number of African-American judges, required the
State to maintain a racially diverse judiciary, and established continuing
federal jurisdiction over enforcement of the terms of the settlement. Governor
Miller decided to honor the spirit of the Brooks settlement and appointed
several outstanding African-American judges to the Courts of the State. For the
first time in history, the judiciary began to move in the direction of
reflecting the diversity of State.
The progress under
Governors Miller and Barnes has stalled and been reversed.
The record of diverse
appointments under the current governor leaves much room for improvement. Here
are some sobering facts:
· Less than 5 percent of the 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.
· Only two out of the twenty-plus members of the
Judicial Nominating Commission 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:
· 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 (or any seat on that
court). 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 in 2014 they hold only 30 percent. In the county which has the state’s highest concentration
of lawyers of color, one is led to question whether we are likely to see many new
judges of color beyond the level of the Municipal Court.
· 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.
· The situation is worse in some of the more rural
portions of this State. There are vast regions in the State of Georgia which have
no judges of color, and which have never had a judge of color.
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, 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 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. When a Governor is given the
responsibility of filling a judicial vacancy it is unlike any other
appointment. When appointing to the Executive Branch, a Governor is arguably
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.
Diversity and Merit Selection
The usual response to
calls for diversity is the assertion that one is choosing the most qualified
candidates. However, the recent erosion in judicial diversity is certainly not
due to a lack of qualified diverse candidates. More likely, it may be that 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.
There are thousands of
talented lawyers from diverse backgrounds across the State. 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, numerous 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 lawyers. There are legions of other talented lawyers who play
key roles in the efficient administration of justice. Although some have suggested
that it may be difficult to find judicial candidates among the many diverse lawyers
who have achieved extraordinary levels of professional success, this suggestion
assumes a double-standard under which diverse lawyers are expected to be more highly
qualified than their non-diverse counterparts. It is submitted that a true merit selection process
would require that appointing authorities seek out and appoint talented candidates
of all backgrounds; that a judiciary that is overly homogenous will be blind to
the variety of thought and opinion in the modern marketplace of ideas; and that
a one-dimensional judiciary will struggle to attain cultural competence in an increasingly
diverse society.
Diversity and Partisanship
Another response to calls
for judicial diversity is the assertion that judicial appointments must go to candidates
who are of the Governor’s party, and that there are insufficient diverse candidates
who are of the Governor’s party. This assertion
is based on the dangerous and unwarranted belief that judicial selection is merely
a variety of political patronage. Given the
racially polarized nature of Georgia’s current partisan divide, any litmus test
which is based on party loyalty will have the self-fulfilling effect of insuring
that the current homogenous and exclusionary pattern of appointments will continue
indefinitely. The principle of merit selection mandates that judges be appointed
based on their qualifications, and not based no their political affiliations. Any Governor who wishes to abandon merit selection
in favor of partisan politics should openly declare his intention to do so, so that
the people of Georgia can have an open debate as to whether they wish to embrace
this change.
Conclusion
A commitment to
diversity requires one to consider whether, in a state with more than 3 million
African-Americans, two African-American members of Judicial Nominating
Commission are 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 have a direct
effect on the public’s level of confidence in the quality of justice which they
expect in the courts of this State.
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