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Judicial retirement system is an obstacle to recruitment

By J. Stephen Czuleger and Peter Espinoza

J. Stephen Czuleger
Peter 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.

Copyright 2007 Daily Journal Corp. Reprinted and/or posted with permission. This file cannot be downloaded from this page. The Daily Journal’s definition of reprint and posting permission does not include the downloading, copying by third parties or any other type of transmission of any posted articles.

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