The Florida Bar
www.floridabar.org
The Florida Bar Journal
March, 2014 Volume 88, No. 3
Diversity Losing Ground in the Judicial System

by Eugene K. Pettis

Page 4

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Essential to our democracy is the public’s trust in its existence. Nowhere is the public’s trust more important than in the judiciary.

Studies have found that diversity in the judiciary is essential to ensure impartiality, public confidence, and the perception that all members of society are represented on the bench. While our constitutional right is to be judged by a jury of our peers, America has learned an important historical lesson of the value of having a judiciary reflective of our diverse society.

A judicial bench that is inclusive — of race, gender, ethnicity, religion, physical impairment, and sexual orientation — introduces traditionally excluded perspectives and values into judicial decision-making.

In her 1997 Boston College Law Review article, “Judging the Judges: Racial Diversity, Impartiality and Representation on State Trial Courts,” law Professor Sherrilyn Ifill found that the interplay of diversities and perspectives can enrich judicial decision-making.

In Florida, these principles have long been recognized by our leadership, Democrats and Republicans alike. But recently, this question is raised: Are we weakening our commitment to inclusion in our judicial system?

For nearly three decades, Florida’s citizens realized the benefits of maintaining a diverse bench. Former Governors Bob Martinez (1987-91), Lawton Chiles (1991-98), and Jeb Bush (1999-2007) held diversity of the merit selection process (judicial nominating commissions and judicial appointments) high on their priority lists.

The Brennan Center for Justice, in a 2010 study, “Improving Judicial Diversity,” found that the states most successful in maintaining diverse judiciaries have been led by governors, chief justices, and other high-ranking officials who set an inclusive tone to require a systematic approach to ensure that diversity is reflected on the bench.

In 1989, the Florida Supreme Court began an unprecedented examination of racial and ethnic bias in the justice system, producing two reports in 1990 and 1991. Most importantly, leaders from all three branches of government came together to work on eradicating undisputed racial and ethnic bias in our courts.

Interestingly, the joint efforts started with the JNC appointments made by Chiles. In his first year in office in 1991, he appointed 23 out of 26 individuals from racial and ethnic minorities. The following year, Chiles appointed 19 minorities, out of 26 seats, to the JNCs.

In late 1999, Bush challenged the JNCs to submit more diverse slates of candidates to be placed on the commissions and made it a top priority to increase minorities among his appointments to Florida’s bench.

This bipartisan and intra-branch commitment made a difference and strengthened the integrity of our judicial system.

Sadly, we have lost our focus on the goal of judicial diversity, resulting in slippage of past gains to keep pace with an ever-changing society.

The number of African-American state court Article V judges has begun to decline, because of a combination of retirement due to age or health issues, and the death of two judges. Mostly, they have been replaced by non-African-American judges. This is of great concern, especially when we look at how many more minorities may retire from the bench in coming years.

Look at the first step of our merit selection process, and the composition of our JNCs is an even greater concern. As of January 2014, we have 234 JNC positions, with all but four occupied. There are merely 22 Hispanic members, nine African-Americans, and one Asian on our JNCs. Those numbers represent the following significant decreases in diversity in the two decades since January 1994: Hispanics members now make up 9.57 percent, down from 11.2 percent; and African-American members are now 3.91 percent, down from 24.7 percent.

These numbers are atrocious, when we look at the significant diversity that we have achieved within society and within our Florida Bar, in a state with the richest diversity in the nation.

We have lost focus on the bipartisan commitment achieved decades ago. Continuing on this current path will be detrimental to our judicial system and will result in a failure of our obligation to society.

The time is now for a rededication of commitment of all three branches of our government to put politics aside and fulfill our leadership obligation of maintaining a judicial system reflective of society.

John D. Rockefeller said: “I believe that every right implies a responsibility; every opportunity, an obligation; every possession, a duty.”

That is why it is so necessary that qualified Bar members from all communities offer to serve on JNCs and apply for judgeships. Together, we can help strengthen our judicial system.

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[Revised: 06-29-2014]