A Call for Fairness in the Selection of U.S. Magistrates

February 27, 2015

Hon. Thomas W. Thrash, Jr.

Hon. Timothy Batten, Sr.

Hon. Marc H. Cohen

Hon. Clarence Cooper

Hon. William S. Duffey, Jr.

Hon. Orinda D. Evans

Hon. Willis B. Hunt, Jr.

Hon. Steve B. Jones

Hon. Leigh Martin May

Hon. Harold L. Murphy

Hon. William C. O’Kelley

Hon. Charles A. Pannell, Jr.

Hon. Eleanor L. Ross

Hon. Marvin H. Shoob

Hon. Richard W. Story

Hon. Amy Totenberg

United States District Court

            For the Northern District of Georgia

Richard B. Russell Federal Building and Courthouse

75 Spring Street, S.W.

Atlanta, Georgia 30303-3361

 

            Re:      Selection of U.S. Magistrate for the Northern District of Georgia

Dear Judges of the U.S. District Court:

Advocacy for Action, Inc. is a non-profit organization formed for the purpose of working to ensure that Georgia has a judiciary which represents the best and brightest minds from all segments of our communities.  We believe that 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.”[1] 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.[2]  Speaking through its diversity subcommittee, the Judicial Conference Committee on Judicial Resources has noted that:

 “The essential function of courts is to dispense justice. An important component of this function is the creation and maintenance of diversity in the court system. A community’s belief that a court dispenses justice is heightened when the court reflects the community’s racial, ethnic, and gender diversity.”[3]

This principle is applicable in the selection of magistrate judges, according to the Judicial Conference’s Conference Committee on the Administration of the Magistrate Judges System, which has noted that a merit selection panel for the selection of federal magistrates is obligated, under the Judicial Conference’s selection and appointment regulations, to give due consideration to all qualified applicants for a magistrate judge position, particularly those from underrepresented groups.[4]

Events have come to our attention regarding the magistrate selection process in the Northern District of Georgia which appear to be inconsistent with the foregoing principles.  In June of 2014, the court appointed a Merit Selection Panel consisting of thirteen individuals, including only one African-American. We do not wish to suggest that the court should have employed a principle of proportional representation in the appointment of this panel.  Nevertheless, it should be noted that a panel that is less than 9% African American is far from representative of the population of this very diverse district.  That such an unrepresentative panel might have had difficulty in producing a representative short list was a thoroughly foreseeable outcome.

In recent months, this flawed Merit Selection Panel was called upon to screen applicants for the position held by Magistrate Judge E. Clayton Scofield, III.  The information which has come to our attention from a variety of reliable sources reveals the following about the work of this panel:

• A number of applicants applied for this positon, including a number of well-qualified African-American lawyers and judges;
• A number of the applicants, including some of the African-American candidates, were not interviewed by the panel;
• The Merit Selection Panel has developed a short list of five candidates, and the panel has submitted this short list to the Court; and
• There are no African-Americans on the short list developed and submitted by the Merit Selection Panel.

We must assume that the court subscribes to the principles of inclusion which are described in the foregoing passages from Judge Posner, Judge Wynne, and the Judicial Conference.  We further assume that, in order to adhere to these principles, the court would expect to be presented with a range of choices for magistrate judge that truly reflects the diversity of the district’s talent pool.  If we are correct in these assumptions, then the action of the Merit Selection Panel in producing a racially-exclusive short-list does a disservice to the Court (albeit a predictable one).  It also does a disservice to the people of this district, who deserve a process which at least has a chance of producing a representative judiciary.

You, the judges of this court, are not required to appoint the next magistrate from the racially-exclusive list which has been developed by this flawed Merit Selection Panel; rather, you are authorized to select none of the names that have been submitted to you and, instead, to request the panel to go back to the drawing board and develop a new short list that reflects the district’s racial, ethnic and gender diversity.  We urge you to take this action, which is fully within your statutory authority.  Before you do so, however, we urge you to revisit the composition of the Merit Selection Panel, so that the next round of deliberations will be conducted by a panel which is better equipped to provide the court with a more representative range of choices.

Sincerely, 

Retired Judge Thelma Wyatt Moore

President, Advocacy for Action, Inc.

Former Judge Bettianne Hart

Vice President, Advocacy for Action, Inc.

Suzanne Wynn Ockleberry

Charles S. Johnson III

Co-Convenors, Advocacy for Action PAC

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[1] Richard A Posner, Law, Pragmatism and Democracy 71 (2003).

[2] James A. Wynne and Eli P. Mazur, Judicial Diversity: Where Independence and Accountability Meet. 67 Albany Law Review 755 (2004).

[3] Administrative Office of the United States Courts, Office of Judge Programs, Magistrate Judges Division, The Selection, Appointment and Reappointment of United States Magistrate Judges (2010) 28.

[4] Id.