Judicial retirement system is an obstacle to recruitment
By J. Stephen Czuleger and Peter Espinoza
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Czuleger |
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Espinoza |
The Administrative Office of the Courts has released the first in what will
be a statutorily required annual series of reports on the gender and ethnicity
of the bench in California — a subject about which accurate information
has, historically, been all too difficult to get.
Although action by the legislature was necessary before this new reporting
system came into existence, the fact is that all interested parties — judges,
the AOC, the Judicial Council of California, the State Bar, the legislature
and the administration in Sacramento — can benefit from these new data.
That expanding the number of new judgeships has been made contingent on greater
diversity among judicial appointees is a net future benefit for the judicial
branch.
Our own data and those of the State Bar of California Diversity Pipeline Project
indicate that the Los Angeles Superior Court leads the state in the racial
and gender representation on its bench. Ten percent of our judges are Latino;
nearly 9 percent are African-American and 29 percent are women. We recognize,
however, that leading the state in judicial diversity is not sufficient. More
can and will be done. It is not time to hang a banner on the courthouse that
reads “Mission Accomplished.”
In every survey of public trust and confidence in California’s courts,
the ability of any particular community to identify with the judicial branch
is key. Courts succeed only when they have the confidence of the communities
they serve.
But, as lawyers know, courts don’t hire their own judges. We select
commissioners, of course, and an expanded and broadened applicant outreach
process last year has resulted in the most diverse panel of commissioner applicants
we have ever had. Recently, the governor has drawn on the pool of our talented
commissioners for appointment as judges.
Then there is the issue of the minimum qualification for a judge being 10
years in practice as an attorney. The proportions of African-Americans, Latinos
and Asian-Pacific Islanders at the level of partner in California law firms
are not as high as many might hope. Moreover, there is evidence that law school
enrollments of African-Americans, in particular, are actually declining.
Statistical limitations do not permit measurement of the ethnicity of all
attorneys statewide with 10 or more years in practice. So, confining though
it is, comparing proportions of partners by race and gender to law students
or associates is as close a numerical surrogate as possible.
Neither the Los Angeles Superior Court nor any other trial court can appropriately
engage in the politics of affirmative action — especially in an environment
in which we don’t pick judges, anyway. The only viable solution will
be time-consuming, and it relies on persuading minority and female lawyers
with about a decade in practice to consider second careers in the judiciary.
There is no group better suited to this kind of mentoring than members of
the bar at large. Of course, judges can — and should — pay particular
attention to identifying women and minority lawyers they think would be good
judges. And those potential applicants for the bench should be encouraged — strongly
by judges — to pursue this dream.
No one disputes the reality that this is a long-term process. It does not,
however, mean that action is not possible today. Some specifics drawn from
the work of our own court:
- We held a countywide summit on judicial diversity in Los Angeles County.
The January event was attended by more than 200 judges and bar leaders.
- We have stepped up our outreach to racial minority and female law students
and newly admitted attorneys to try to broaden the applicant pool for new
law clerks. We know this can be a pathway to becoming a successful lawyer,
and subsequently a judge — accepting the reality that this process
will take more than a decade.
- We have developed an outreach program to bar associations representing
racial minority groups and women to encourage their members to consider a
judiciary career at the appropriate time.
- We are being more systematic about identifying judges on our court who
have close ties with minority and women’s groups to encourage and support
those judges to be effective advocates among young people who may follow
in their footsteps.
- We have restructured our commissioner recruiting process with the objective
of producing a more diverse applicant pool. This was highly successful last
year. Our objective is to continue finding the most promising people in all
racial and gender groups.
There is one critical issue, however, that can be addressed only by the legislature.
California’s judicial retirement programs are structured so that attorneys
who come to the bench from public sector practice areas are disadvantaged compared
with judges who come from private practice. We know that the public sector
legal community includes greater percentages of minority group members and
women than private practice.
The disparity occurs because attorneys working in the public sector typically
are members of retirement programs that make them eligible for benefits after
a certain number of years (usually five to 10) and attainment of a minimum
age — often 50 or 60. But the judicial retirement system requires 20
years of service as a judge and a minimum age of 65.
Accordingly, a public sector attorney in, for example, his or her 50s with
15 to 20 years of public service who is appointed a judge makes a marked transition
in retirement benefits at a difficult, late-career moment. The new judge enters
the judicial retirement system anew, at the bottom of the scale, with many
more years of service necessary to qualify for a viable retirement benefit.
This situation often puts potential judicial candidates in the position of
making career decisions that will disadvantage them economically as they approach
retirement age. The retirement benefit problem is particularly acute
because judicial salaries lag far behind the private sector. Able people of
both genders and all races remain available to become judges, but as the income
disparity widens, the retirement program inequity becomes even more problematic.
Pending legislation that would reform eligibility criteria for judicial retirement
plans has strong potential to encourage a more diverse pool of candidates from
which the governor could choose.
The State Bar of California is to be commended for its Diversity Pipeline
Project, which recognizes that enhancing diversity in the practice of law and
on the bench can only be approached with a long-term vision and a strategy
that works toward never-ending, though gradual, change.
As the new AOC report emphasized, and our court has always advocated, it is
up to everyone in the legal profession — you attorneys and us judges — to
play whatever roles we can in this process. Expanding and broadening the applicant
pool for the bench is the only effective long-term strategy. We must work together
to achieve it.
• J. Stephen Czuleger has been presiding judge of the Los Angeles Superior
Court since Jan. 1. Peter Espinoza, also a judge on the Los Angeles Superior
Court, served as chair of the planning committee for the court’s
Diversity Summit in mid-January.
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