The Importance of Judicial Diversity

By Professor Laurie Levenson and Courtnee Draper '14

This op-ed originally appeared in the Friday, Feb. 15, 2013 edition of the Los Angeles and San Francisco Daily Journal.

As Thomas Jefferson proclaimed, "The most sacred of the duties of a government is to do equal and impartial justice to all its citizens." To accomplish this goal, it is imperative that we have a diversified bench. Recent national studies show that minority groups lag far behind in their confidence in our judicial system. While 62 percent of white voters view the courts as fair and impartial, only 55 percent of non-whites feel the same. In fact, 85 percent of some minority groups believe there are two systems of justice: one for the rich and powerful, and one for everyone else.

Overall, judges of color account for just 12 percent of all state court judges chosen since 2000. In California, we have a long way to go until our bench reflects the population that it serves. For example, Asians comprise 15 percent of the state's population; however, they represent only 5 percent of all judges. A more concerted effort has been made to appoint African-Americans to the California bench. African-Americans constitute 6 percent of the state population, and they too represent only 5 percent of the current judges.

The greatest focus has been on the appointment of Latino judges. Since January 2011, 15 new Latino judges have been appointed to the bench, increasing the representation of Latino judges to 8.2 percent. Yet in a state where 37.6 percent of the population is Latino, there is still a long way to go before the bench is diverse enough that Latinos are anything other than "token" appointees.
We also need to focus on other underrepresented groups in judicial appointments. For example, there is still a significant gender gap in our state's judicial appointments. Women comprise almost 40 percent of California's lawyers. However, they still represent only 33 percent of the judicial appointments. Of course, women of color face the double challenge of being both a woman and a minority when a seeking judicial appointment.

Nor do the challenges for minorities and women end once they are appointed to the bench. Sometimes, they are more vulnerable to challenge in retention elections, particularly if they have foreign-sounding names. While the public might like to think that in 2013 there is no longer racial or gender bias, the statistics suggest otherwise. It is still tougher for certain groups to attain leadership positions, including seats on the bench, because of factors completely unrelated to their qualifications to be a judge.

Volumes have been written on the importance of having a diversified bench. Some of the strongest voices have come from those who work in our state's judicial system. In his law review article, "Humility, Humanity, and Judicial Diversity," Michael Nava, a former judicial staff attorney to retired Associate Justice Carlos Moreno, wrote, "the absence of people of color, women and gays and lesbians for example - is a phenomenon that, over time, may erode the legitimacy of the third branch of government among ... unrepresented groups."

In his own public remarks, Justice Moreno agreed. When awarding Sharon Major-Lewis the "Champion of Diversity Award" for her work as the appointments secretary for former Gov. Arnold Schwarzenegger, Justice Moreno argued that the only way that equal justice for all can be obtained is by taking the issue of minority appointments seriously. Diversity serves as a structural safeguard against bias and prejudice. Diversity ensures a full and balanced deliberation and decision-making process. Diversity also increases the appearance of justice as well, because how can the public have trust in an institution charged with protecting the rights of all if that very institution is segregated?

Much of the appointments process is hidden from public view. While there are committees that help evaluate candidates for judicial appointment, the actual selection process occurs in relative secrecy. The governor, with his appointments secretary, makes the final selections. When the appointments are announced, there is no formal announcement as to why one candidate was selected over another. Thus, there is no way to know for certain what role diversity played in the selection process.

While we should not embrace a quota system for judicial appointments, we must ensure that everyone who is qualified can be considered for judicial appointment. Confidence in our judicial system depends on it. So many of a judge's functions involve the ability to relate to and communicate with litigants before the court. They also involve drawing on the judge's own background to evaluate a wide range of subjects, from sentencing issues to evaluating the credibility of witnesses, including police officers. People from different backgrounds can approach issues very differently just because of their life experiences.

Certainly part of the challenge in appointing diverse judges is the lack of minority lawyers in the California Bar. In order for there to be more minority appointments, a greater number of people of color must be nurtured through our law schools and into the ranks of lawyers. Collectively, Asians, African-Americans and Latinos still only comprise approximately 15 percent of the California Bar. To diversify our bench, we must carefully consider those qualified candidates who are available now and create opportunities for more people of color to become lawyers in the future.

Finally, we must consider that there are lawyers of all backgrounds andin all kinds of practices who can contribute to the bench. Some of the most dedicated, able jurists-to-be are those who have served our community in public service positions, including as defense counsel and prosecutors.

Although 50 years have passed since Martin Luther King, Jr.'s "I Have a Dream" speech, we have a long way to go before fulfilling the dreams of all groups in American society. The numbers tell the story. If we really believe in a diverse bench, we must continue to make diverse judicial appointments a priority. Some progress has been made, but there is a long way to go. Our choices are not black or white. There is a rainbow of choices that can and should be made. Diversity is the door of opportunity that should be open to everyone who wants to serve on the state court bench.