state bar of california council on access & fairness

State Bar of CaliforniaCouncil on Access & Fairness

Beauty and the Bench: Beauty and the Bench: The Judicial Perspective The Judicial Perspective

California Minority Corporate Counsel ProgramSeptember 30, 2010 – San Francisco

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


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)

FIRST, A WORD FROM OUR SPONSOR:


2020 Projections for California

7% 6.70% 6.10%

2% 2.40%3.90%

9%

11.20%

14.20%

3.00%

6.00%7.40%

26.00%

32.40%

39.10%

2.00%

3.70%

5.60%

0%

5%

10%

15%

20%

25%

30%

35%

40%

45%

1990 2001 2020

Afr-Am Population

Afr-Am Attorneys

API Population

API Attorneys

Latino Population

Latino Attorneys


Racial/Ethnic Minorities in the Professions in California

4340 40 40

3735

28 27

17

0

5

10

15

20

25

30

35

40

45

50


California State Bar Diversity Categories2001

Survey2006

Survey2004 CACensus

Active Bar Members 148,000 154,500

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%


Race/Ethnicity Statistics

State Bar of CaliforniaDemographics 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/

Latino3.0% 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%

Caucasian 91.0% 57% 83.0% 46.7% 84.4% 43.4%


Gender Statistics


Women in the Profession

State Bar 1991

Data

California 1990

Census

State Bar 2001 Data

California 2000

Census

State Bar 2006Data

California 2004

Census

26.0% 49.94% 32.0% 50.2% 34.0% 50.7%


LGBT Statistics


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

State Bar of CaliforniaCouncil on Access & FairnessAttorney Demographics in the

Private Sector vs. Large Firms

PARTNERS

MinorityAfrican

AmericanAsian Pacific

IslanderHispanic/

Latino

California 4.04% 1.38% 1.31% 1.2%

ASSOCIATES

MinorityAfrican


IslanderHispanic/

Latino

California 14.63% 4.07% 7.01% 2.96%

MinorityAfrican


IslanderHispanic/

Latino

Statewide Population 53.3% 6.7% 11.2% 32.4%

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



• “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



• “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.



• “…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.


Diversity in the California Courts

Supreme Court Total 7 Seats

42.8% Ethnic Diversity (3 seats)*(As of December 31, 2009)

African American

Asian/Pacific

Islander

Latino

Female Male Female Male Female Male

0 0 1 1 0 1

* Compiled by COAF Judiciary Committee



Courts of Appeal Total 105 Seats

11.4% Ethnic Diversity (12 seats)*(As of December 31, 2009)

African American

Asian/Pacific

Islander

Latino


0 4 2 2 2 2




Superior Courts1593 Funded Judgeships (1643 Authorized)

20.3% Ethnic Diversity (323 seats) *(As of December 31, 2009)

African American

(97)

Asian/Pacific

Islander(92)

Latino(134)


49 48 28 64 36 98




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.

Population Compared to Judiciary Statewide1,631 Sitting Judges on December 31, 2009

40.6

%

7.0% 11

.0%

32.0

%

73.6

%

5.2%

5.2% 7.5%

0%

10%

20%

30%

40%

50%

60%

70%

80%

Caucasian African American Asian Pacific Islander Latino

Population JC Report 12/09


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


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



Caucasian African AmericanAsian Pacific IslanderHispanic/LatinoNative AmericanOther Mixed RaceNo Info1200 84 85 122 5 15 60 60

1200

84

85

122 5 15 60 60

California Courts Total

Caucasian African American Asian Pacific Islander

Hispanic/Latino Native American Other

Mixed Race No Info

Ethnic Diversity – All Courts – YE 2009

Source: Judicial Council 2010 Annual SB56 Report


Ethnic Diversity - Courts of Appeal - YE 2009Superior Courts

8472

107

1235

Caucasian African American Asian Pacific Islander Hispanic/Latino

Population Compared to Judiciary Statewide

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

Population Statewide

Diversity in Judiciary


1200

8485 122

Caucasian

African American


Latino

1200

84

85

122


Caucasian

African American


Latino/Hispanic

83

33 3

7 3

Courts of Appeal


Hispanic/Latino Mixed Race No Info



Ethnic - Superior Courts – YE 2009

Caucasian African AmericanAsian Pacific IslanderHispanic/LatinoNative AmericanOther Mixed RaceNo Info1113 81 81 118 5 15 52 57

1113

81

81 118

5 15 52

57

Superior Courts


Hispanic/Latino Native American Other

Mixed Race No Info


San Francisco Bay Area Dec 2009

55.0%

38.4%

18.6%

28.2%

53.2%

46.8%

52.7%

46.1%

22.0%

40.6%

16.7%

0.0% 0.0%

29.4%

12.0%

25.4%27.8%

12.5%

0.0%

10.0%

20.0%

30.0%

40.0%

50.0%

60.0%

Alameda Contra Costa Marin Napa San Francisco San Mateo Santa Clara Solano Sonoma

% Ethnic Minority of Total Population*

Total % Ethnic Judges


Central Valley - Dec 2009

57.5%

47.9%

37.6%

49.0%

38.9%

55.7%

29.3%

9.1%

26.3%22.2%

5.6%10.5%

0.0%

10.0%

20.0%

30.0%

40.0%

50.0%

60.0%

70.0%

Fresno Kern Sacramento San Joaquin Stanislaus Tulare

% EthnicMinority ofTotalPopulation*Total % EthnicJudges


Southern California - Dec 2009

66.6%

46.3% 46.4%53.2%

41.8% 40.8% 40.9%

30.8%

17.3% 16.1% 16.2% 14.2% 15.8%

3.7%

0.0%

10.0%

20.0%

30.0%

40.0%

50.0%

60.0%

70.0%% Ethnic Minority of TotalPopulation*Total % Ethnic Judges


THE CASE FOR GENDER DIVERSITY

• Juror in contempt for not disclosing H’s occupation, but male jurors not asked W’s occupation

• Lowered bail – convicted rapist-DV case using knife-allowing Def to be reunited w/ dog would “cool his temper”

• Insisted attorney use her husband’s surname in court, though she had retained birth name

• “Rules are like women – made to be violated”

• Rape victim was “coyote ugly”


Gender – All Courts—YE 2009

1154

477


Male Female


(29.2%)

(70.8%)

1,631 Sitting Judges

California Courts Gender YE 2009

Court Female

N %

Male

N %

TOTALS

N %

Supreme Court

3 42.9% 4 57.1% 7 100%

Courts of Appeal

30 29.4% 72 70.6% 102 100%

Superior Courts

444 29.2% 1078 70.8% 1522 100%

TOTALS 477 29.2% 1154 70.8% 1631 100%


4

3

01

23

45

Supreme Court

Male

Female

1078

444

0

200

400

600

800

1000

1200

Judges - Superior Courts

72

30

0

10

20

30

40

50

60

70

80

Courts of Appeal


Diversity in the California Courts by Gender –

YE 2009 (Raw Numbers)

THE POTENTIAL POOLEligible for Judicial Appointment (passed bar between 1979 and 2000)

Women African American

Asian American

Latino Other Minority

53,128 4,491 8,506 6,678 4,788


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 CaliforniaCouncil 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



94 118149

766

59 81112

526

23 30 44

250

0

100

200

300

400

500

600

700

800

900

Asian Black Hispanic White

Apps Rec'd

Forwarded to JNE

Appointed

The Potential Pool -- Ethnic Applications and “JNE” Commission Evaluations 2006-2009

The Potential Pool -- JNE Ratings by Ethnicity 2006 - 2009 (raw numbers)

EWQ‘06 ’07 ’08 ‘09

WQ‘06’ 07 ’08 ’09

Q’06 ’07 ’08 ‘09

TOTALS

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

TOTALS 11 71 140 222


Ethnic Diversity of Appointments January 1, 2006 – December 31, 2009

* Diversity information compiled by COAF


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

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



The Potential Pool – Applications and Appointments by Gender - 2006-2009

462

310 265120

679

529

247

840

0

200

400

600

800

1000

Applications Forwardedto JNE

RatedQualified

Appointed

Women

Men

Sources: Applications – Governor’s annual SB 56 reports; Forwarded – JNE’s annual SB 56 reports; Ratings – JNE’s annual SB 56 reports; Appointed – COAF

Gender Diversity of Appointments January 1, 2006 – December 31, 2009

* Diversity information compiled by COAF


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


*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.

0%10%20%30%40%50%60%70%80%90%

Caucasian African American

Asian Pacific

Islander

Latino

Population Compared to Judiciary Statewide2006- 2009

Population

CWG* Judiciary 5/06

JC Rpt 12/06 (2/07)

JC Rpt 12/09


Gender Diversity in the Courts

Women Judges Compared to State Population 2006- 2009

0%

10%

20%

30%

40%

50%

60%

Women

Population

CWG* Judiciary 5/06

JC Rpt 12/06 (2/07)

JC Rpt 12/09


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



• Encourage more judicial mentoring programs – ACBA model



• 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



• Educate public on importance of diversity, and provide status report on levels in communities

• Encourage courts in each county to put on court-sponsored programs on how to become a judge


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


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