Transcript Beauty and the Bench: The Judicial Perspective Hon. Brenda Harbin-Forte , A

State Bar of California
Council on Access & Fairness
Beauty and the Bench:
The Judicial Perspective
Panelists:
Hon. Brenda Harbin-Forte , Alameda County Superior Court
Chair, Judicial Committee, State Bar Council on Access & Fairness
Hon. Erica Yew, Santa Clara County Superior Court
Hon. Robert Tafoya,
Kern County Superior Court
Hon. Kevin McCarthy,
San Francisco County Superior Court
Fredericka McGee, Esq., General Counsel, Office of the Speaker,
Assemblymember John A. Perez
Moderator:
Christine Noma, Esq., Partner, Wendel, Rosen, Black & Dean, LLP
California Minority Corporate Counsel Program
September 30, 2010 – San Francisco
State Bar of California
Council on Access & Fairness
FIRST, A WORD FROM OUR SPONSOR:
Note: All Access & Fairness activities
are funded through voluntary
contributions to the State Bar.
No mandatory attorney dues are
used for these activities.
(Keller and Brosterhous Limitations)
State Bar of California
Council on Access & Fairness
2020 Projections for California
45%
Afr-Am Population
Afr-Am Attorneys
API Population
API Attorneys
Latino Population
Latino Attorneys
40%
35%
30%
39.10%
32.40%
26.00%
25%
20%
14.20%
15%
11.20%
10%
5%
9%
7%
6.70%
2%
3.00%
7.40%
6.10%
6.00%
3.70%
2.00%
5.60%
3.90%
2.40%
0%
1990
2001
2020
State Bar of California
Council on Access & Fairness
Racial/Ethnic Minorities in the
Professions in California
40
40
37
35
28
27
La
wy
er
s
ch
ite
ct
s
Ar
te
rs
ep
or
R
oc
to
rs
D
en
t is
t
17
En
gi
ne
er
s
Pr
of
es
so
rs
Ac
40
D
43
co
un
ta
nt
Pr
s
og
ra
m
m
er
s
50
45
40
35
30
25
20
15
10
5
0
State Bar of California
Council on Access & Fairness
California State Bar Diversity
Active Bar Members
2001
Survey
148,000
2006 Categories
2004 CA
Survey
Census
154,500
Race/Ethnic Minorities
African American
2.4%
1.7%
6%
Latino/Hispanic
3.7%
3.8%
35%
Asian/Pacific Is.
6.0%
5.3%
12%
Other/Mixed
4.9%
4.8%
3.6%
Total Minorities
17.0%
15.6%
56.6%
Women
32.0%
34.0%
50.7%
LGBT
2.4%
5.2%
2.1%
Disabilities
4.0%
No data
17.4%
State Bar of California
Council on Access & Fairness
Race/Ethnicity Statistics
State Bar of California
Demographics 1991 to 2004
Race/
Ethnicity
State Bar
1991 Data
California
1990
Census
State Bar
2001 Data
California
2000
Census
State Bar
2006 Data
California
2004
Census
African
American
2.0%
7%
2.4%
6.7%
1.7%
6%
Asian
Pacific
Islander
3.0%
9%
6.0%
11.2%
5.3%
12%
Hispanic/
Latino
3.0%
26%
3.7%
32.4%
3.8%
35%
Other
Minority
1.0%
1%
4.9%
3%
4.8%
3.6%
Total
Minorities
9.0%
43%
17.0%
53.3%
15.6%
56.6%
91.0%
57%
83.0%
46.7%
84.4%
43.4%
Caucasian
State Bar of California
Council on Access & Fairness
Gender Statistics
State Bar of California
Demographics 1991 to 2001
Women in the Profession
State
Bar 1991
Data
California
1990
Census
26.0% 49.94%
State Bar
2001 Data
California
2000
Census
State Bar
2006Data
California
2004
Census
32.0%
50.2%
34.0%
50.7%
State Bar of California
Council on Access & Fairness
LGBT Statistics
State Bar of California
Demographics 1991 to 2001
LGBT in the Profession
State Bar
1991 Data
California
1990
Census
State Bar
2001 Data
California
2000
Census
State Bar
2006 Data
California
2004
Census
3.0%
***
***
***
5.2%
2.1%
*** Statistics not available
Attorney Demographics in the
Private Sector vs. Large Firms
Statewide
Population
State Bar of California
Council on Access & Fairness
Minority
African
American
Asian Pacific
Islander
Hispanic/
Latino
53.3%
6.7%
11.2%
32.4%
PARTNERS
California
Minority
African
American
Asian Pacific
Islander
Hispanic/
Latino
4.04%
1.38%
1.31%
1.2%
ASSOCIATES
California
Minority
African
American
Asian Pacific
Islander
Hispanic/
Latino
14.63%
4.07%
7.01%
2.96%
State Bar of California
Council on Access & Fairness
WHY VALUE JUDICIAL DIVERSITY?
• “In my view, a diverse bench not only
will maintain and enhance our state’s
tradition of having an excellent
judiciary, but also will serve to reinforce
our guiding principle – that we are
committed to making our justice system
fair and accessible to all.
– Chief Justice Ronald M. George, Welcoming remarks,
“Continuing a Legacy of Excellence: A Summit on
Diversity in the Judiciary”, June 2006, San Jose, CA,
convened by the State Bar
State Bar of California
Council on Access & Fairness
WHY VALUE JUDICIAL DIVERSITY?
• “When you recognize that, in the
United States, it is the ability to
petition our courts for fairness that
keeps people from seeking justice in
the streets, then you understand that
diversity in the legal profession is
critical for democracy to survive.”
– Judge Dennis Archer (Ret.), Past ABA president
State Bar of California
Council on Access & Fairness
WHY VALUE JUDICIAL DIVERSITY?
• “The benefits of a judiciary that is diverse
go beyond the symbolic. We require jury
pools to be representative of the
community not just because it reduces the
perception of bias, but because it reduces
the actual opportunity for bias. The
benefits that accrue from having 12
diverse viewpoints on a jury are similarly
present when it comes to diversity on the
bench….”
Editorial, American Judicature Society Magazine,
March/April 2010 ed.
State Bar of California
Council on Access & Fairness
WHY VALUE JUDICIAL DIVERSITY?
• “…Judges can and do influence each other.
They exchange ideas on and off the bench. A
judiciary that is comprised of judges from
differing backgrounds and experiences leads to
an interplay and exchange of divergent
viewpoints, which in turn prevents bias, and
leads to better, more informed decision making.
Diversity of opinion among decision makers
encourages debate and reflection, and fosters a
deliberative process that leads to an end
product that is greater than the sum of its parts.“
Editorial, American Judicature Society Magazine,
March/April 2010 ed.
State Bar of California
Council on Access & Fairness
Diversity in the California Courts
Supreme Court
Total 7 Seats
42.8% Ethnic Diversity (3 seats)*
(As of December 31, 2009)
African
American
Latino
Asian/Pacific
Islander
Female
Male
Female
Male
Female
Male
0
0
1
1
0
1
* Compiled by COAF Judiciary Committee
State Bar of California
Council on Access & Fairness
Diversity in the California Courts
Courts of Appeal
Total 105 Seats
11.4% Ethnic Diversity (12 seats)*
(As of December 31, 2009)
African
American
Latino
Asian/Pacific
Islander
Female
Male
Female
Male
Female
Male
0
4
2
2
2
2
* Compiled by COAF Judiciary Committee
State Bar of California
Council on Access & Fairness
Diversity in the California Courts
Superior Courts
1593 Funded Judgeships (1643 Authorized)
20.3% Ethnic Diversity (323 seats) *
(As of December 31, 2009)
African American
(97)
Asian/Pacific
Islander
(92)
Latino
(134)
Female
Male
Female
Male
Female
Male
49
48
28
64
36
98
* Compiled by COAF Judiciary Committee
State Bar of California
Council on Access & Fairness
Diversity in the California Courts
73.6%
Population Compared to Judiciary Statewide
1,631 Sitting Judges on December 31, 2009
80%
Population
70%
JC Report 12/09
32.0%
50%
40.6%
60%
40%
7.5%
5.2%
10%
11.0%
7.0%
20%
5.2%
30%
0%
Caucasian
African American
Asian Pacific Islander
Latino
Note: From the Judicial Council’s 2010 annual SB56 report. The remaining 8.5% of the bench fall into the categories of “American
Indian”, “More Than One Race”, “Some Other Race”, or “Information Not Provided”. The report shows that 60 judges provided no
information on ethnicity. If one assumes that 73.6% of those 60 judges are Caucasian, an additional 44 Caucasian judges would be
added to the 1200 self-identified ones, for a total of 1244 Caucasian judges. This results in a representation of 76.3%, as opposed to the
lower 73.6% figure in the JC’s Annual Report. The percentages of African American, Asian Pacific Islander, and Latino judges would
also increase slightly if representative percentages of the non-responding group are factored in.
State Bar of California
Council on Access & Fairness
WHY POPULATION AND NOT
BAR MEMBERHIP
• Goal 1 of the California Judicial Council’s strategic plan
is to achieve a judicial branch that “will reflect the
diversity of the state’s residents.” Access to justice
issue.
• “I strongly believe that any judge should be able to
fairly hear and decide any case, no matter who the
parties and regardless of the racial, ethnic, religious,
economic or other minority group to which they belong.
Nevertheless, it cannot be questioned that a bench that
includes members of the various communities served
by the courts will help instill confidence in every
segment of the public that the courts are indeed open
to all persons and will fairly consider everyone’ claims.”
California Chief Justice Ronald M. George, 2007
remarks to Senate Judiciary Committee’s Public Hearing
on the Judicial Selection Process
State Bar of California
Council on Access & Fairness
WHY POPULATION AND NOT
BAR MEMBERHIP
• Lawyers don’t own cases, causes of
actions, claims – CLIENTS DO
• CLIENTS come from the general
population
• Lawyers want fair results for CLIENTS
• Explosion of self-represented litigants
who come from the general population
• “PUBLIC” trust and confidence = “general
population” trust and confidence in our
court system
State Bar of California
Council on Access & Fairness
Ethnic Diversity – All Courts – YE 2009
Source: Judicial Council 2010 Annual SB56 Report
State Bar of California
Council on Access & Fairness
Ethnic Diversity - Courts of Appeal - YE 2009
California Courts Total
California Courts Total
1200
1235
85
122
84
Caucasian
Caucasian
African American
African
Asian Pacific Islander
Latino
1200
American
Asian Pacific Islander
Latino/Hispanic
84
85
122
lation Compared to Judiciary Statewide
Source: Judicial Council 2010 Annual SB56 Report
State Bar of California
Council on Access & Fairness
Ethnic - Superior Courts – YE 2009
Source: Judicial Council 2010 Annual SB56 Report
State Bar of California
Council on Access & Fairness
San Francisco Bay Area Dec 2009
60.0%
% Ethnic Minority of Total
Population*
55.0%
53.2%
50.0%
Total % Ethnic Judges
52.7%
46.8%
46.1%
40.6%
40.0%
38.4%
30.0%
29.4%
28.2%
27.8%
25.4%
22.0%
20.0%
18.6%
16.7%
12.0%
12.5%
10.0%
0.0%
0.0%
Alameda Contra Costa
Marin
0.0%
Napa
San Francisco San Mateo
Santa Clara
Solano
Sonoma
State Bar of California
Council on Access & Fairness
Central Valley - Dec 2009
70.0%
60.0%
57.5%
49.0%
47.9%
50.0%
38.9%
37.6%
40.0%
29.3%
30.0%
% Ethnic
Minority of
Total
Population*
Total % Ethnic
Judges
55.7%
26.3%
22.2%
20.0%
10.5%
9.1%
10.0%
5.6%
0.0%
Fresno
Kern
Sacramento
San Joaquin
Stanislaus
Tulare
State Bar of California
Council on Access & Fairness
Southern California - Dec 2009
70.0%
% Ethnic Minority of Total
Population*
Total % Ethnic Judges
66.6%
60.0%
50.0%
40.0%
53.2%
46.3%
46.4%
41.8%
40.8%
40.9%
30.8%
30.0%
16.1%
17.3%
20.0%
16.2%
14.2%
15.8%
3.7%
10.0%
Sa
n
ta
a
tur
Ve
n
Ba
rb a
ra
go
Sa
n
D ie
o
rd i
n
rn a
Sa
n
Be
er s
id e
R iv
Or
an
ge
Lo
sA
ng
el e
s
0.0%
THE CASE FOR GENDER
DIVERSITY
• Juror in contempt for not
• Insisted attorney use her
disclosing H’s occupation,
husband’s surname in
but male jurors not asked
court, though she had
W’s occupation
retained birth name
• Lowered bail – convicted • “Rules are like women –
rapist-DV case using
made to be violated”
knife-allowing Def to be
• Rape victim was “coyote
reunited w/ dog would
ugly”
“cool his temper”
State Bar of California
Council on Access & Fairness
Gender – All Courts—YE 2009
1,631 Sitting Judges
(29.2%)
(70.8%)
Source: Judicial Council 2010 Annual SB56 Report
State Bar of California
Council on Access & Fairness
California Courts Gender YE 2009
Court
Supreme
Court
Courts of
Appeal
Superior
Courts
TOTALS
Female
N %
Male
N
%
TOTALS
N %
3
42.9%
4
57.1%
7
30
29.4%
72
70.6% 102 100%
100%
444 29.2% 1078 70.8% 1522 100%
477 29.2% 1154 70.8% 1631 100%
State Bar of California
Council on Access & Fairness
5
4
3
2
1
0
4
3
Diversity in the California
Courts by Gender –
YE 2009 (Raw Numbers)
Male
Female
1200
1078
Supreme Court
1000
80
72
800
70
60
600
50
444
40
400
30
30
20
200
10
0
0
Courts of Appeal
Judges - Superior Courts
State Bar of California
Council on Access & Fairness
THE POTENTIAL POOL
Eligible for Judicial Appointment
(passed bar between 1979 and 2000)
Women
53,128
African
Asian
American American
4,491
8,506
Latino
Other
Minority
6,678
4,788
State Bar of California
Council Access & Fairness
THE POTENTIAL POOL- WHO
QUALIFIES THE QUALIFIED?
• Informally: The Governor’s Judicial
Selection Advisory Committees (aka “Secret
Committees”)
– Membership, including diversity thereof, not
known or made public, criteria used to evaluate
candidates not known or made public, methods
of investigating candidates not known or made
public
• Formally: State Bar’s Commission on
Judicial Nominees Evaluation (“aka “Jenny”
Commission”)
– Membership, including diversity thereof, is known
and made public, published criteria for evaluating
candidates, broad input from all stakeholders,
members receive bias training and cultural
sensitivity training.
State Bar of California
Council Access & Fairness
THE POTENTIAL POOL- WHO
QUALIFIES THE QUALIFIED?
• Formally: Local and Minority Bar Judicial
Appointments Evaluation Committees
-- Appointments through bar association
policies and protocols: membership,
including diversity thereof, is known and
made public; specific criteria for
evaluating candidates
State Bar of California
Council on Access & Fairness
The Potential Pool -- Ethnic Applications
and “JNE” Commission Evaluations
2006-2009
900
766
800
700
Apps Rec'd
600
Forwarded to JNE
500
Appointed
526
400
250
300
200
94
100
118
59
149
81
30
23
112
44
0
Asian
Black
Hispanic
White
State Bar of California
Council on Access & Fairness
The Potential Pool -- JNE Ratings by
Ethnicity 2006 - 2009 (raw numbers)
EWQ
WQ
Q
TOTALS
‘06 ’07 ’08 ‘09 ‘06’ 07 ’08 ’09 ’06 ’07 ’08 ‘09
Asian/PI
0
1
1
0
4
7
2
3
3 10 10 10
51
Black
1
1
0 1
1
7
5
5
6 16 17 9
69
Hispanic
3
2 1 0
9 13 10 5
15 16 21 7
102
71
140
222
TOTALS
11
State Bar of California
Council on Access & Fairness
Ethnic Diversity of Appointments
January 1, 2006 – December 31, 2009
TYPE OF
COURT
NUMBER
OF
APPTS
ETHNIC DIVERSITY OF APPOINTEES
African
American *
Asian/
Pacific
Islander *
Latino *
Total
Ethnic *
Supreme Court
0
N/A
N/A
N/A
N/A
Courts of Appeal
18
3
1
0
4
Superior Courts
349
34
26
43
117
All Courts
367
37
27
43
107
* Diversity information compiled by COAF
State Bar of California
Council on Access & Fairness
The Potential Pool -- JNE Ratings by
Gender 2006 - 2009 (raw numbers)
EWQ
WQ
Q
Totals
Women ’06
2
15
34
51
Women ’07
2
19
47
68
Women ’08
1
16
67
84
Women ‘09
2
21
39
62
Totals
7
71
187
265
State Bar of California
Council on Access & Fairness
The Potential Pool – Applications and
Appointments by Gender - 2006-2009
1000
840
800
600
400
679
Women
529
462
310
M en
265
247
120
200
0
Applications Forw arded
to JNE
Rated
Qualified
Appointed
Sources: Applications – Governor’s annual SB 56 reports; Forwarded – JNE’s annual SB 56 reports;
Ratings – JNE’s annual SB 56 reports; Appointed – COAF
State Bar of California
Council on Access & Fairness
Gender Diversity of Appointments
January 1, 2006 – December 31, 2009
TYPE OF
COURT
NUMBER OF
APPTS
GENDER
DIVERSITY OF
APPTS
Men *
Women *
Supreme Court
0
N/A
N/A
Courts of Appeal
18
13
5
Superior Courts
349
234
115
All Courts
367
247
120
* Diversity information compiled by COAF
State Bar of California
Council on Access & Fairness
Diversity in the California Courts
Population Compared to Judiciary Statewide
2006- 2009
90%
80%
70%
60%
50%
40%
30%
20%
10%
0%
Population
CWG* Judiciary 5/06
JC Rpt 12/06 (2/07)
JC Rpt 12/09
Caucasian
African
American
Asian
Pacific
Islander
Latino
*Data compiled by the by the Courts Working Group of the State Bar’s Diversity Pipeline Task
Force for the June 2006 Summit on Diversity in the Judiciary.
State Bar of California
Council on Access & Fairness
Gender Diversity in the Courts
Women Judges Compared to State Population
2006- 2009
60%
50%
40%
Population
CWG* Judiciary 5/06
JC Rpt 12/06 (2/07)
JC Rpt 12/09
30%
20%
10%
0%
Women
State Bar of California
Council on Access & Fairness
HOW TO INCREASE
JUDICIAL DIVERSITY
• Recruit and encourage minorities,
women, LGBTs, attorneys with
disabilities, etc, to apply
• Push for better retirement system
to attract more applicants
State Bar of California
Council on Access & Fairness
HOW TO INCREASE
JUDICIAL DIVERSITY
• Encourage more judicial
mentoring programs – ACBA
model
State Bar of California
Council on Access & Fairness
HOW TO INCREASE
JUDICIAL DIVERSITY
• Level the playing field by providing
opportunities for women, minority,
and LGBT judges, as well as
judges with disabilities, etc., to sit
on assignment on the appellate
courts
State Bar of California
Council Access & Fairness
HOW TO INCREASE
JUDICIAL DIVERSITY
• Educate public on importance
of diversity, and provide status
report on levels in communities
• Encourage courts in each
county to put on courtsponsored programs on how to
become a judge
State Bar of California
Council Access & Fairness
TIME FOR YOU TO JOIN THE EFFORT
TO INCREASE JUDICIAL DIVERSITY?
• “. . . It may well be that we will have to repent in
this generation, not merely for the vitriolic words of
the bad people and the violent actions of the bad
people, but for the appalling silence and
indifference of the good people, who sit around and
say ‘wait on time.’ Somewhere we must come to
see that social progress never rolls in on the
wheels of inevitability. It comes through the tireless
efforts and the persistent work of dedicated
individuals, and without this hard work, time itself
becomes an ally of the primitive forces of social
stagnation. So we must help time. We must realize
the time is always right to do right.”
Excerpt from address by Dr. Martin Luther King, Jr.
Memorial Auditorium, Stanford University, April 14, 1967