Rx Warning: Quitting Diversity Efforts Too Soon May Result in Harmful Relapse
We have all heard the sage medical advice to complete the entire prescribed course of antibiotics for an infection. This decades-old adage was based on scientific fear that partial treatment of an infection could lead to a “super infection.” Even during Antibiotic Awareness Week 2016, the World Health Organization advised patients to “always complete the full prescription, even if you feel better, because stopping treatment early promotes the growth of drug-resistant bacteria.”1
There is a natural human tendency to have the urge to declare triumph in many life situations, often prematurely. As it relates to antibiotic therapy, people want to claim their illness is behind them the minute they feel better. This human tendency has played out even on the political stage. President George W. Bush infamously declared “mission accomplished” in Iraq on May 1, 2003, and stated that it was the end of major combat operations in Iraq.2
History showed that this claim was premature and that the vast majority of casualties, both military and civilian, occurred after the speech.3
In the march toward representative diversity of our judiciary, society is not immune to this human fallacy. There have been many efforts to accomplish greater diversity in our judiciary, and we have seen periodic signs of improvement.
Why Are We Still Having Dialogue About Diversity in the Judiciary?
Just as a child feels better after a few days of antibiotics — even though the infection is still in his or her system — so, too, is society anxious to move on from the topic of diversity at the earliest sign of improvement. One step in the right direction does not complete a journey of advancement. There must be a conscious effort to guard against premature celebration or proclamation of “mission accomplished” before the journey of a representative judiciary is complete. Otherwise, people run the risk of superficially addressing the concerns while allowing an insidious condition to brew below the surface, which would be detrimental to the ultimate goal of establishing and maintaining a healthy judiciary, reflective of all communities.
This article offers a brief historical perspective on the topic of diversity in the judiciary. It looks at Florida’s performance in achieving diversity throughout the judicial appointment process (judicial nominating commissions or JNCs) and the bench. Lastly, the article addresses why the accomplishment of diversity and inclusion in the judiciary still matters today.
There have been discussions and efforts to address diversity in the judiciary for decades.4
It’s a popular platform item for bar associations, politicians, and citizens. But in truth, little has changed. Results have been inconsistent and significantly lagging behind the rate of changing racial and gender demographics in the general population and in law school graduates. In other words, the applicant pools are deeper, but minority appointments to the judiciary and the JNCs that select the candidates that will be considered for appointment to the bench, are showing only gradual change.
There has been a historical lack of continuity in true diversity initiatives. Simply writing a diversity statement does not yield real and lasting structural change.5
There’s no question that support for diversity is in vogue. Corporations, bar associations, and political candidates say they support such efforts. To say anything else in an ever-diversifying society would be reckless.
Why the Lag in Meaningful Change?
Diversity generally encompasses both demographic characteristics — including gender, race, ethnicity, national origin, religion, sexual orientation, gender identity, socioeconomic background, and physical ability — and professional experiences. It has been shown that bringing diverse experiences and perspectives to bear allows judges to make better informed decisions and increases public confidence in their rulings.
As president of The Florida Bar in 2013-14, I commissioned the Task Force to Study Enhancement of Diversity in the Judiciary and on the JNCs.6
A very diverse, bipartisan group, headed by Frank Scruggs as chair, performed an analytical review of the topic. The selection of Mr. Scruggs was intentional given the work he had performed more than two decades earlier as chair of the Florida Supreme Court’s Racial and Ethnic Bias Study Commission. The 1990 and 1991 reports led to momentous actions in all three branches of Florida government.7
The response after the 1990-91 study was a genuine effort of change. Gov. Lawton Chiles made bold changes to the merit selection process through appointing diverse candidates for the JNCs and the bench. As a result, “the proportion of county and circuit court judges of color almost doubled between 1990 (6 percent) and 2000 (11 percent). At the court of appeals level, the proportion nearly quadrupled, from 4 percent in 1990 to 15 percent in 2000.”8
In March 2014, when I appointed the Task Force to study diversity in the judiciary among the state’s 974 county, circuit, and appellate court judges, fewer than 9 percent were Hispanic, and fewer than 7 percent were black. The Florida Bar Board of Governors received 10 recommendations from its task force, which were all designed to improve upon these numbers.9
It’s worth keeping in mind that this task force was one of the most bipartisan efforts we had seen in decades to address this issue. While there have been continued discussions of this issue at the highest levels of our Bar and the governor’s office, we have seen very little change in the judicial appointment numbers.
Florida’s current performance is still skewed in a review of general racial and gender population demographics and representation in the judiciary.
Florida’s racial demographics illustrate whites (non-Hispanics) make up only 54.9 percent of the total population, according to July 1, 2017, census statistics.10
Nevertheless, whites account for 82.3 percent of the state judiciary. (See Figure 1.) With respect to gender, women hold a slight majority in the state population, yet they only account for 39.1 percent of our state court judges.
There is an argument that part of the cause of lack of minority representation on the bench is a shallow pool of candidates. That argument is baseless. Somehow recruiters find a way to enroll a disproportionately higher percentage of African-American football and basketball players to Division 1 schools across the country in comparison to their overall numbers in higher education. A “shallow pool of college attendees” never gets in the way of that recruitment effort. The reason is that the system sees significant benefit from their presence on the fields and ball courts. If the problem of disparity in the judiciary with the same focus and determination is addressed, then the disparity would be immediately erased. The problem is, those making the appointments and selecting the nominations don’t see the real value to a judiciary representative of its communities.
Real Roadblock: Politics
Many people believe politics is a major obstacle in achieving true diversity of our judiciary. There have been national studies that have looked at politics and judicial diversity and found that which political party is in office seems to impact the success rate of diversifying the judiciary. An AJS study published by the American Bar Association in 2009 found that Democratic governors have appointed slightly higher percentages of minority judges than did Republican governors.11
Neither party has clear bragging rights on the issue.
But looking just at who’s making the appointment from the governor’s mansion may be missing part of the puzzle. In Florida, the first phase of merit selection starts with the application being submitted to the JNC. If you are not selected to the slate submitted to the governor’s office for consideration, there is no way to advance through the appointment process. So it is essential to have a JNC that reflects the diversity we claim we are trying to achieve in the judiciary. Many studies have shown a direct correlation between the diversity in the selection process and the appointments.
In Florida, there is a merit selection process that gives the governor total control of the judicial appointment process. He or she is the final arbiter of appointments and controls the selection of the JNCs, which select the slates. This is a system that was initiated during former Gov. Jeb Bush’s term. This change made the appointment process more political and made political affiliation more important than any other factor. Consequently, achievement of diversity has been a challenge ever since.
Past President of The Florida Bar William Schifino is a member of the current Constitutional Revision Commission (CRC). He sponsored a proposal that would have restored the judicial nominating commission process back to what it was initially in the 1970s under former Gov. Reubin Askew. The former merit selection system had the JNC composed of three members selected by the governor, three members selected by The Florida Bar, and those six members selected three others. It is widely believed that the former process resulted in a more representative bench and removed some of the party politics from the process. Schifino’s proposal received strong support from the CRC’s Judiciary Committee with a vote of 6 to 1. Unfortunately, in February, the proposal was defeated in the Executive Committee by a vote of 4 to 3.
If people are truly interested in a diverse judiciary that is representative of Florida’s rich demographics, and study after study has shown that this goal is best achieved under a shared merit selection system, then why the negative vote? The only reasonable conclusion is politics. For many in power, talk of diversity in the judiciary is just that — talk.
Why Does Diversity Still Matter?
Former U.S. Supreme Court Justice Sandra Day O’Connor said, “the law is not an abstract concept removed from the society it serves, and that judges, safe guarders of the Constitution, must constantly strive to narrow the gap between the ideal of equal justice and the reality of social inequality.”12
Each of our life’s journey have left indelible imprints that shape and influence our thoughts and decisions. Just as a bullet leaves ballistic markings based upon various factors, such as velocity and wind, so too are humans shaped and marked by the paths their lives have traveled. The reality is judges are not immune from implicit bias and neither are members of the judicial nominating commission.
But we need not run away from the unique ways our lives have been shaped but rather embrace our differences and use those distinguishing characteristics to form a broader and more representative judicial system.
For most people, state courts are “America’s court.” The issues that immediately impact their daily lives are typically matters that are handled in state court. In fact, state courts handle more than 90 percent of the judicial business in America.13
Studies have shown that people have greater confidence in a court system that reflects the overall community. This is a critical point when considering that the power of the judiciary outside of the constitution is significantly founded upon the people’s trust and respect of the institution. When people see members from their own communities within the judicial system, there is a heightened belief of fairness and impartiality.
When reviewing the state court system across the country, there are some glaring discrepancies. More than half of the state trial judges and state appellate judges are white men according to the state bench database figures. While only 30 percent of the population, white men account for an astonishing 58 percent of the state court judges.14
Women of color are the most underrepresented group (only 40 percent of their relative numbers in the general population), while white men are overrepresented (nearly double their relative numbers).
There has long been tension between the criminal justice system and race. Criminal prosecutions make up a significant portion of total cases in state courts.
Significance of Disparities in Criminal Justice System
The racial demographics of criminal defendants in state courts is drastically skewed from population census.
The Bureau of Justice Statistics estimated that in 2009, in the 75 largest counties, nearly half (44 percent) of felony defendants were non-Hispanic African-Americans and nearly one-quarter (24 percent) were Hispanic/Latino.15
When the disproportionate numbers of nonwhites in the criminal justice system are combined with the inflated representation of white men as judges, there is a natural tension and question of fairness; whether justified or not.
The only conclusion that can be drawn is that, despite various efforts and lots of dialogue about improving the racial and gender imbalance in Florida’s judiciary, there is still much work to be done.
If there is ever a chance to succeed in diversifying the judiciary, society must put aside politics and embrace the proven fact that we are stronger when we stand as one humanity; as a community that embraces the richness of its diversity. Our unity must open a pathway to the bench for all qualified persons — no matter their race or gender. It is imperative that until the merit selection process has changed, the governor must commit to an appointment process that is committed to a judiciary reflective of all people. It is equally important that interested candidates for the judiciary and those interested in serving on a JNC must commit themselves to excellence and prepare themselves for the opportunity. This requires dedication of skill and commitment to developing an effective network.
In the end, this is an issue that Florida must resolve. Individuals desirous to serve in the judiciary or on the JNC are strongly encouraged to stay persistent in their pursuit. At some point, the preservation of the integrity in our judicial system, which is built on people seeing the court as an unbiased and impartial institution, must trump politics.
1 Marc Sprenger, How to Stop Antibiotic Resistance? Here’s a WHO Prescription, World Health Organization (Nov. 20, 2015), available at http://www.who.int/mediacentre/commentaries/stop-antibiotic-resistance/en/ .
2 Bush Makes Historic Speech Aboard Warship , CNN.com (March 1, 2003), http://www.cnn.com/2003/US/05/01/bush.transcript/ .
3 Seth Cline, The Other Symbol of George W. Bush’s Legacy, U.S. News and World Report, May 1, 2003, available at https://www.usnews.com/news/blogs/press-past/2013/05/01/the-other-symbol-of-george-w-bushs-legacy .
4 Mark D. Killian, Panel Takes Testimony at Third Merit Selection Hearing, Fla. Bar News (Nov. 15, 1999), available at https://goo.gl/wjfi3L ; Mark D. Killian, JNC Leaders Respond to the Governor’s Call for More Diversity, Fla. Bar News (Feb. 1, 2000), available at https://goo.gl/hsxQoX.
5 Elise James-Decruise, The Real Reason Corporate America’s Diversity Initiatives Fail, Fortune, Jan. 26, 2017, available at http://fortune.com/2017/01/25/corporate-america-diversity-leadership-career-advice/ .
6 The Florida Bar , President’s Special Task Force to Study Enhancement of Diversity in the Judiciary and on the JNC’s (2014) available at https://goo.gl/BLMJRg .
7 Florida Supreme Court Racial and Ethnic Bias Commission, Executive Summary (March 1990), available at http://www.floridasupremecourt.org/pub_info/documents/bias.pdf; Florida Supreme Court Racial and Ethnic Bias Commission, “Where the Injured Fly for Justice”: Reforming Practices Which Impede the Dispensation of Justice to Minorities in Florid a (1991), available at http://www.floridasupremecourt.org/pub_info/documents/racial.pdf .
8 The Florida Bar , President’s Special Task Force to Study Enhancement of Diversity in the Judiciary and on the JNC’s at 3 (2014), available at https://goo.gl/BLMJRg .
9 Id. at 7.
10 United States Census Bureau, Quick Facts Florida, https://www.census.gov/quickfacts/FL .
11 Malia Reddick, Michael J. Nelson, and Rachel Paine Caufield, Racial and Gender Diversity on State Courts: An AJS Study , 48 Judges J.
(ABA, Summer 2009), available at https://goo.gl/gGdjPw .
12 See Steven Hopkins, Book Review of Sandra Day O’Connor’s The Majesty of the Law (July 25, 2003), http://www.hopkinsandcompany.com/Books/The%20Majesty%20of%20the%20Law.htm.
13 National Center for State Courts & Conference of State Court Administrators, Court Statistics Project: An Overview of 2015 State Court Caseloads (2016), available at http://www.courtstatistics.org/~/media/Microsites/Files/CSP/EWSC%202015.ashx.
14 Tracey E. George & Albert H. Yoon, Who Sits in Judgements on State Courts? , The Gavel Gap, http://gavelgap.org/pdf/gavel-gap-report.pdf .
EUGENE K. PETTIS is co-founder of Haliczer Pettis & Schwamm and leads a trial practice representing corporate, public sector, and individual clients in civil trial matters. He has over 30 years of experience handling a range of complex cases for defendants and plaintiffs in the areas of medical malpractice, personal injury, commercial litigation, employment, and professional liability. Pettis is a former president of The Florida Bar and the first African-American to serve in this position.