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Changing the color of the California bench

By Nancy McCarthy
Staff Writer

The release of figures last month that show a decidedly white male judiciary in California highlighted critics’ complaints in recent years about a lack of diversity on the bench. And although observers serve up a smorgasbord of reasons for the paucity of judges of color and female judges, and lay responsibility on different doorsteps, they agree the judiciary does not come close to mirroring California’s population.

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The data show that 70 percent of the state’s judges are white and almost 73 percent are male. Latino judges represent 6.3 percent of the bench and African-Americans and Asian-Americans make up 4.4 percent each. Since Gov. Arnold Schwarzenegger took office in 2003, fewer than 20 percent of his 211 judicial appointees have been minorities — 16 Latinos, 15 Asian-Americans and 10 African-Americans.

Alameda County Superior Court Judge Brenda Harbin-Forte

“I think it’s a huge problem,” said Alameda County Superior Court Judge Brenda Harbin-Forte, who chairs a panel that focuses on courts for the State Bar’s Diversity Pipeline Task Force. “If we don’t take steps now to address this issue, people coming to the courts will lose respect for the justice system.”

The working group found that in all 58 counties in California, the number of white judges exceeds the white population of the county. In some counties with high ethnic minority populations, there are no judges of color.

The panel said the principal barriers to change, both real and perceived, are:

  • An appointment process that is inherently political;
  • A candidate evaluation process that suffers from a lack of transparency and a perceived lack of accountability for the outcomes;
  • Screening committees used by the governor;
  • An overemphasis on trial experience; and
  • An apparent bias against the criminal defense bar.

The end result of such barriers, Harbin-Forte said, is that minority attorneys “are just not going to bother” to apply for judgeships.

Representatives of minority bar associations blame Schwarzenegger and past governors for failing to appoint more women and minorities to the bench. Schwarzenegger in particular drew criticism from minority bar associations last year when John Davies, his then-judicial appointments secretary, said the governor did not consider candidates’ race or ethnicity when making judicial selections.

The complaints gained traction in the last legislative session when Assembly Speaker Fabian Nunez, in an effort to force the governor to try harder to recruit minority candidates, nearly derailed SB 56, a measure to create 50 new judgeships this year.

Nunez allowed the bill to move forward after Schwarzenegger agreed to consider changes to the judicial application form and to make public the ethnicity and gender of applicants. (The Commission on Judicial Nominees Evaluation (JNE) and the Administrative Office of the Courts also are required to provide annual gender and ethnicity information about applicants and judges.) He did not agree to make public the secret county vetting committees that consider applicants and make recommendations for judgeships.

Schwarzenegger has defended his record, saying that since taking office, his administration “has focused on expanding the pool of minority judicial candidates” and that the pool increased to 29 percent last year.

Sharon Majors-Lewis

In February, he appointed Sharon Majors-Lewis, an African-American woman who was chief deputy district attorney in San Diego County, as his new judicial appointments secretary. Majors-Lewis has spent her first few weeks on the job meeting with bar associations, the current JNE chair and others and said she’s optimistic that the various parties can work together. She also said Schwarzenegger is “committed to making our bench more diverse.”

In particular, she disputed the often repeated criticism that, in making judicial appointments, Schwarzenegger tries to reflect the diversity of California’s lawyer population rather than the diversity of the state. “As a practical matter,” Majors-Lewis said, “we cannot go and get judges from the general population. The governor would love to have the California bench look like California. That is our ultimate goal and I think he’s working very hard at achieving that.”

But Christopher Arriola, a deputy district attorney in Santa Clara County and past president of California La Raza Lawyers, said Schwarzenegger “is really not doing very well,” particularly since minority applicants are gaining qualified or better ratings from the JNE Commission. “It is a little frustrating to see there was a pool of very well qualified Hispanic applicants who just weren’t being appointed,” he said.

Gary Farwell, president of the California Association of Black Lawyers, agreed that qualified applicants have not gotten the nod. “We believe there are plenty of attorneys of color who have applied and are not getting appointed,” Farwell said. “The ones who have applied are just as qualified as the ones who are appointed.”

Harbin-Forte said the working group wants to figure out “where the bottleneck is” for minority applicants and cited several areas where they are at a disadvantage. Applicants with extensive jury experience, particularly as prosecutors or civil litigation lawyers, fare well, as do attorneys with political connections, she said. Attorneys from the minority community often practice in areas such as family law or probate that don’t entail vast trial experience. Many also work as public defenders or criminal defense attorneys, whom Harbin-Forte said are not appointed as often as prosecutors.

The small vetting committees in most counties that report privately to the governor can present a big obstacle to some applicants. “We understand the process is inherently political,” said Harbin-Forte, who emphasized the working group does not favor quotas or artificial caps.

“We’re not talking about special treatment,” she said. “We just want the same opportunities.”

She also thinks the JNE Commission, the group that evaluates every candidate submitted by the governor, gives many minority applicants a “qualified” (Q) rating, seldom awarding an “extremely well qualified” (EWQ) or “well qualified” (WQ) rating.

“We don’t know why we can’t get a lot of people through JNE,” Harbin-Forte said. “Many minorities get rated only ‘qualified.’ That ought to be enough, but the governor’s office likes to appoint EWQs or WQs. If that’s what they want and minorities fall into the Q pool, that’s another barrier.”

Nonsense, said several former JNE commissioners, who also took issue with an accusation last fall by Timothy Simon, a Schwarzenegger aide at the time, that JNE gave poor ratings to minority applicants he considered strong candidates for the bench. Simon, who no longer works for the governor, said “there is something wrong” with the JNE process and that he had been “shocked beyond tears” by the low ratings.

Mark Schickman

Mark Schickman, a former JNE chair, said blaming the commission for the lack of minority appointments to the bench “is a transparently specious excuse . . . There’s nothing in the JNE process that’s stopping the governor from appointing more women or people of color if he or she wants to.”

Schickman, a San Francisco labor lawyer, said he found it ironic that JNE has been accused in the past of being too liberal or bending over backwards in favor of people of color. “I would dispute that, because our system is designed for impartiality and both the last Democratic and Republican administrations have expressed that they do not want us weighing in on politics . . . or on anything but what’s in our rules.”

He and other commissioners said JNE is well balanced, does exhaustive evaluations on a case-by-case basis and has numerous safeguards in place to assure that candidates receive a fair hearing.

“The legal community as a whole still has a long way to go to reach equity when it comes to minorities and women,” said Helen Zukin, a Los Angeles lawyer and former JNE chair. “But it’s not a function of the JNE Commission. We just call it as we see it as to who is sent to us and only on professional qualifications. That’s the very limited role the JNE Commission is playing.”

Last year, JNE evaluated 225 candidates sent by the governor’s office, of whom 52 stated they are minorities and 39 were classified as other or unknown. Among those who stated they are minorities, nine were rated not qualified, 24 received a qualified rating, 15 well qualified and four extremely well qualified. During the same time frame, Schwarzenegger named 21 minorities to the bench, although some may have been evaluated in previous years.

Harbin-Forte, Arriola and Farwell said despite their displeasure with the numbers, they are optimistic that Majors-Lewis will bring a new approach to the process. “I think the governor’s office is making an effort,” Harbin-Forte said, and she praised “the bipartisan way he approaches his appointments.”

Majors-Lewis is reviewing the en-tire appointments process, meeting with interested parties and trying to connect with the legal community and the public. The application form now includes a revised question about prior experience, a response to complaints about the heavy emphasis on trial experience as a job requirement. The new question will allow applicants to demonstrate “other skill sets that would translate over to making a good judge,” Majors-Lewis said.

She said the administration has no set policy about appointing applicants based on their rating by the JNE Commission. “We consider every person individually, based on the total picture, the county they want to sit in, their expertise, their breadth of experience,” she said. “Just because they’re a Q (qualified rating) does not mean they could never get a judicial appointment.”

She encouraged every lawyer who believes he or she is qualified to be a judge to apply. “I don’t want people to self-select themselves out of the process because they have a disability or are a Democrat or don’t know anyone,” Majors-Lewis said, adding she wants “to expand that whole group of people we can pull from. We’re going to take a look at everyone who’s applied.”

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