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.
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.