BENCHâ - The Bar Association of San Francisco

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In California as a whole, as of December 31, 2009, womenrepresent 29.2 percent of the bench, according to theAdministrative Office of the Courts. Native Americansmake up .3 percent, Asians 5 percent, African Americans5.2 percent, and Hispanic or Latino 7.5 percent.According to Sharon Majors-Lewis, Governor ArnoldSchwarzenegger’s judicial appointments secretary, as ofJuly 2010, 34.7 percent of appointees to the bench wereethnic minorities. “That’s more than double the 2005percentage, which was 15.5 percent,” she says. “I thinkwe’re doing something right.”her position since 2007 and is the first African Americanand first woman to serve as the judicial appointmentssecretary.The pipeline for a pool of ethnically diverse candidates istied to diversity of the bar as a whole. And that’s tied todiversity in law schools. At a minimum, a lawyer needsto have been a member of the California State Bar for tenyears and in good standing.“The most significant obstacle to diversity is thatmany ethnically diverse lawyers don’t botherapplying for a judgeship.”Sharon Majors-LewisPresident Barack Obama, too, is trying to increase diversityat the federal level. Since taking office, nearly half ofthe 73 candidates he has tapped for the bench have beenwomen. In all, 25 percent have been African Americans,10 percent Hispanics, and 11 percent Asian Americans.That means seven out of ten Obama court nominees arenontraditional, meaning they have not been white men.Yet few of these nominees have made it to the benchbecause of a deeply polarized confirmation process inthe Senate. During Obama’s first twenty-one months inoffice, his administration has been thwarted by unprecedenteddelays.Obstacles to Achieving a Diverse BenchThere are two ways to become a superior court judge:You can run for the position in a nonpartisan election fora six-year term. Or the governor can appoint you to filla vacant position on the court. To become an appellatecourt justice, you must apply and the governor nominatesyou.“The most significant obstacle to diversity is that manyethnically diverse lawyers don’t bother applying fora judgeship,” says Majors-Lewis, who has served in“There’s also a more esoteric reason for the small pool ofethnically diverse candidates,” says Majors-Lewis. “Thereis oftentimes a belief that what happened before will happenagain. If people felt they were marginalized and thesystem was stacked against them, they don’t want to putthemselves out there.”To counter that belief and increase the pool of candidates,Majors-Lewis spent most of 2007 traveling up and downthe state, speaking with groups and individuals about theprocess of becoming a judge. “I wanted to make the processas transparent as possible,” she says.Diversity, in her view, is not limited to ethnicity. “Wewant diversity regarding political party affiliation, sexualorientation, religious affiliation,” she says. “We wantbroad-based diversity.”Since Majors-Lewis’s appointment, ethnic and racial appointmentshave increased. For instance, prior to herarrival, nine African Americans were appointed to thebench from November 2003 to January 2007. After herappointment, twenty-eight African Americans were appointedfrom February 2007 to April 2010.Justice Maria Rivera, who sits on the First District, DivisionFour of the California Court of Appeals, and is thefirst Latina to serve on this court, says there are severalTHE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 21
name should be submitted to the Judicial Nominee Evaluation(JNE) Commission. “When we looked at the issueof diversity, or the lack thereof, we found the governor’sinformal groups that vet candidates are not very diverse,”says Harbin-Forte. “We need a paradigm shift in theway the applications are handled and how applicantsare evaluated.” Harbin-Forte’s JNE Commission has puttogether a checklist of practical suggestions to help someonecomplete the governor’s application form.To help increase the pool of applicants, Rivera is involvedwith two formal mentoring programs: the JudicialMentorship Program, launched by The Bar Associationof San Francisco this spring, and the Judicial MentorshipProject, with the Alameda County Bar Association.She also informally mentors University of San FranciscoSchool of Law students who are interested in becominga judge.Maria RiveraDiversity and Its Effect on theJudicial CommunityWhile diversity provides the perception of fairness, it alsoinjects fairness into the substantive decision-making process,but not in a way you might think.obstacles. “There’s a traditional bias in favor of appointingtrial attorneys with court experience,” says Rivera,who was appointed in 2002. “We need to expand thenotion of who will be a good judge to include areas of lawthat have traditionally been overlooked.”She also says the meaning of the “best” person for theposition must be reconsidered. “I always hear the argument,‘we only want the best,’” says Rivera. “But howdo you define best? If it’s always the smartest one in lawschool, from the best law school, the most prestigious lawfirm, the most experienced district attorney, you are pullingfrom a narrow subset of people. What if we expandour definition to include people who will be humble, empathetic,who will treat folks with dignity and respect?”Judge Brenda Harbin-Forte, Superior Court judge in AlamedaCounty and chair of the State Bar of CaliforniaCouncil on Access and Fairness’s Judicial Committee, saysthe entire process of appointing judges should be mademore transparent. The governor consults with privatescreening committees, of which the membership and theevaluation criteria used are not public. Yet these committeeshold a lot of power: they recommend whether yourBrenda Harbin-Forte22 FALL 2010
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BENCHâ - The Bar Association of San Francisco