I recently presented to a group of judicial professionals in a Midwestern state on “Gray Area Thinking,”™ a toolset on how to successfully interact with humans who are “different” from “us.” The nearly 160 older, predominately white male, audience members constituted the front line criminal justice professionals for that state. Their lack of diversity underscores a frequent and fundamental question: how do we collectively get to a more diverse and inclusive judiciary?
I’m a veteran of multiple applications for judicial appointment, all unsuccessful. As Minnesota’s only “out” (publicly presenting) transgender attorney with decades of trial experience, the judicial selection process has proven to be both frustrating and enlightening.
The Value of a Diverse Judiciary
For many, life circumstances and conditions—that is, how one makes their way up the success ladder—is dictated by a number of factors that older educated established white men (the benchmark for most courts) might have a hard time appreciating. For example, someone with a long history of family members with college and professional degrees might not even think to try to understand the hurdles that a first-in-the-family college and law school graduate had to navigate.
Moreover, in states that are majority white and Christian, a person of color or foreign-born or non-Christian is often the only person like them in the room. In those circumstances, it’s awfully hard for a majority-oriented person to know what someone “different” is feeling at that precise moment.
Data is relatively limited and fairly dated as to the diversity composition of various state benches; most authorities cite a report by the American Bar Association Standing Committee on Judicial Independence (first published in 2004 and updated last in 2010) or a 2009 compilation of data by the American Judicature Society. All of this data reflect that the percentages of diverse (other than gender) judges range from zero (Vermont and Wyoming, for example) to 15 percent (Louisiana).
The value of populating a state’s bench with diverse candidates is that it will produce much fairer and more realistic results based on each diverse judge’s experience and perspective. It’s that simple and complicated all at once.
Minnesota—One Person’s Story
Minnesota’s Commission on Judicial Selection has 49 members, with 27 appointed by the governor and 22 appointed by the Minnesota Supreme Court. Five of the commission members must be non-attorneys. Commissioners serve for four-year terms that end at the conclusion of the governor’s term.
When a vacancy occurs in the state’s district courts, the commission screens and evaluates applicants and submits a list of three to five candidates to the governor, who is not bound to accept the recommendations. There is no statutory requirement for judicial nominating commissioners to be diverse, although state law specifies that in considering judicial candidates, the commission “shall actively seek out and encourage…women and minorities” to apply for judicial office.
The discussion about judicial diversity is particularly personal for me. In early 2014, Minnesota’s Democratic governor, Mark Dayton, met with representatives of the state’s minority bar associations (Black, Asian, Hispanic, women, and LGBTQ) and urged them to recruit a greater number of applicants for judicial selection. In particular, Minnesota lacks a judge who identifies as transgender. (In fact, there are only two judges in the United States who identify as transgender—both at state or municipal court levels.)
Governor Dayton’s invitation sparked my interest in serving on the bench. At the time of my gender transition in 2009, I was a trial attorney with my own firm in Cedar Rapids, Iowa. Unfortunately, my transition resulted in a loss of so many institutional clients that I eventually closed my practice in Iowa and moved to Minneapolis to start over as the true me. I now split my time between serving as the executive director of a nonprofit that connects low-income persons with legal resources (e.g. an access to justice role) and consulting/speaking on diversity and inclusion, work that includes training the judiciary and court personnel.
I applied for a judicial appointment in my judicial district in the spring of 2014 (when there were five judicial openings) and the spring of 2015 (one opening). Neither application resulted in an interview with the state judicial nominating commission.
I applied again in the spring of 2016. This time, with three open judgeships, I was selected for an interview, along with eight other applicants. The fifteen-minute interview before the commissioners included asking whether the interval between my last court appearance in late 2011 and the date of my judicial interview was too long for me to be effective as a judge. I assured the commissioners that after more than 100 trials, one doesn’t forget how a courtroom works.
A commission representative subsequently advised that while commissioners were impressed with my credentials, in the end they thought I lacked the requisite “urban trial experience” to be a Hennepin County judge. In other words, I got close but not close enough, something which counts only in horseshoes and hand grenades.
Judicial Nominating Commissions as a Key Diversity Component
My experience as an applicant for judicial appointment prompted me to wonder: if a state wants a more diverse judiciary, why apply old ways of thinking, where the same factors are considered regardless of background? If the goal of having a more diverse bench is a greater number of judicial professionals with varied perspectives informed by their personal experiences and those of their particular community, what does it take to get judicial nominating commission members to employ broader perspectives themselves?
Some would suggest that ignorance or even outright bias is responsible for the dearth of diverse judges in many states. To a certain extent, this has to be true. Still, I’m more inclined to believe that most people want to do the right thing, but humans are not good with change. Moreover, it’s very easy to underestimate the power and effect of unconscious bias, even when charged with the specific task of not being biased. I think this is especially a risk when confronted with a candidate, such as a transgender person, who’s completely out of the norm.
So how do we fix this? How can we make the judicial selection process truly fair and oriented toward a greater willingness to actually nominate—and not simply consider—diverse candidates?
First, judicial nominating commissions themselves must include diverse members with “diversity” being broadly defined to include race, gender, ethnicity, country of origin, religion, disability status, LGBTQ status, and socio-economic status. This must not be a token effort. The percentage of diverse judicial nominating commission members should approximate the percentage of diverse people interacting with a state’s civil and criminal courts. If a state’s minority population is only 3 percent of the state’s total population but constitutes 30 percent of those charged with or convicted of criminal offenses, that state’s judicial nominating commission should have roughly 30 percent diverse members. Similarly, if the percentage of persons living at or below the poverty level for a particular state is 15 percent, that state’s commission should have a similar percentage of people with low-income backgrounds.
The second component that could ensure a more diverse judiciary is education. Judicial nominating commission members must be trained on unconscious and explicit bias, micro-inequities, the effects of secondary trauma, and other subjects related to better shaping the human perspective. Since commissioners often routinely meet and vote on candidates collectively, such training should be mandatory and conducted en masse—where each commissioner can get a sense of where each other commission member stands on the spectrum of accepting others who are “different.” Diversity and inclusion training should also include existing members of the judiciary.
Bias training must be regular (e.g. at least yearly) and effective (e.g. involve trainers who push the envelope relative to shaping perspective). The training should be conducted by someone who is independent of that state’s judicial system and is unaffected by internal politics or concerns. State-wide demographics data should be annually assessed. In turn, that data should be used to make decisions about the composition of the judicial nominating commission.
It’s important to understand other data—the percentages of minority students in that state’s law schools; the state’s bar passage rate of minority-identifying applicants; and the percentage of actively practicing diverse attorneys in the state. If a state doesn’t collect this data, the judicial nominating commission should push for its collection.
A state’s judicial nominating commission must communicate with commissions of other states to share ideas and innovations. Further, members should be familiar with system developments, such as a newly released resource from the Brennan Center for Justice, Building a Diverse Bench: A Guide for Judicial Nominating Commissions.
Finally, diverse people appointed to judicial nominating commissions need to be assertive and vocal. It’s not enough to simply be on the commission. Rather, a diverse person’s role must include actually sharing their perspective about what it means to be “different” in our society. Diverse commission members should remind everyone that diverse candidates must be viewed more broadly and with greater consideration given to their entire life experience.
Of course, all of the above takes a conscious plan and some money, which means allocating valuable resources that might otherwise be devoted to something else in budget-conscious judicial systems. Still, the judicial nominating commission must not lose sight of the need for judges to be representative of the persons who come before them.
It does little good to proclaim the need or desire for diverse judicial professionals if the system isn’t geared toward actually producing such people. A state’s judicial nominating commission is critical to achieving a more diverse bench, and the commission itself must be diverse and conscious of how bias can seep into the judicial selection process.
It takes hard work to ensure for an effective, diversity-oriented judicial nominating commission, but the payoff can be immense. The price of not doing so is much higher.