Diversity on the Bench is All About the Governor and the Judicial Nominating Commission

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Justice Thurgood Marshall brought diversity to the Supreme Court in 1958, but the Anne Arundel Circuit Court lacks it today.

Fifty years ago President Lyndon Johnson nominated Justice Thurgood Marshall to the U.S. Supreme Court, bringing diversity to the nation’s highest court. What an honor. What a well-deserved achievement. When nominated at the age of 58, Justice Marshall was the U.S. Solicitor General and an accomplished jurist who was passionate about equal justice under the law. Today, I stand on his shoulders, recognizing he made many sacrifices and risked his life to bring equality of opportunity to this country.

This May, while I participated in a courthouse demonstration peacefully protesting an all-white judiciary in Anne Arundel County Circuit Court, a Washington Post reporter asked me, “Why is diversity on the court important?” The answer is found in a remark by the late author, James Baldwin: “…if one really wishes to know how justice is administered in a country, one does not question the policemen, the lawyers, the judges, or the protected members of the middle class. One goes to the unprotected — those precisely who need the law’s protection most, and listen to their testimony. Ask any Mexican, any Puerto Rican, any black man, any poor person – ask the wretched how they fare in the halls of justice. …Then you will know, not whether or not the country is just, but whether or not it has any love for justice, or any concept of it…”

Protesters braved the rain to rally at the County Courthouse in Annapolis in May

I have seen the need for diversity in my conversations with many judges over the past ten years. One white judge referred to an African American attorney as “lazy,” and an African American woman’s description of events in a case as “contrived.”  Other judges played hooky from diversity training with no consequences.  Have judges read “The New Jim Crow” by Michelle Alexander? They should.

In Maryland, the Governor appoints judges to the Circuit Courts after the respective County Judicial Nominating Commission interviews applicants and creates a shortlist. In more than a decade, only one African American has been nominated by the Anne Arundel County Judicial Nominating Commission. This is indefensible. There is no serious vetting of the members of the Judicial Nominating Commission. Some Commission members could be members of white nationalist organizations and no one would know. The test comes when the Governor accepts the shortlist without minority candidates and fails to question why.

After the Governor appoints circuit court judges, they begin serving immediately but must come before the voters at the next election.  Currently, the law allows for other candidates to challenge them, whether or not the Commission recommended them, but there is talk among State legislators about changing these contested elections to retention elections, in which only those already appointed by the Governor are allowed to run.

This would be a terrible outcome for diversity on the court. Contested judicial elections remain necessary and should not be abolished until major reforms are made on how Commission members create a shortlist.

No one should assume all judges are fair and impartial. Yes, I know it is written in the Codes of Judicial Conduct to be so, but in reality, many are not. There is often a fine line between sufficient and insufficient evidence.  Judges make that call, and they are influenced by external forces. After all, they live in a culturally polarized and racially divided America.  They are members of neighborhoods, country clubs, golf clubs and yacht clubs, and associate with friends who are members of political left leaning or right leaning organizations. They talk about their cases with other judges every day.

Voters should do their homework about the reputations of judges for whom they will vote. Find out what lawyers are saying about them at www.therobingroom.com. Many lawyers who represent minorities will freely share with you whether a judge leans toward the government or the individual, or toward employers or employees, for example, on employment law cases. Ask if a specific judge is cordial. Does he or she have a dismissive attitude over minorities’ or women’s testimony? Is there disparity in how he or she sentences black or white, rich or poor defendants in criminal cases?  Ask whether white men frequently get little to no jail time for felonies or misdemeanors in the judge’s courtroom. Does the judge quickly accept white litigants’ testimony as entirely credible? Does he or she excessively overrule minority lawyers’ objections or dismiss minority witnesses’ testimony as not credible? If the judge has run for office, learn through the Maryland Board of Elections who has contributed to his or her campaigns.

The State’s Commission on Judicial Disabilities is charged with investigating complaints against Maryland judges. Many voters have asked me, “Why isn’t the Commission on Judicial Disabilities doing something about unfair judges?” My response is that the Commission on Judicial Disabilities is not likely to remove a judge for giving a lenient sentence or making a bad call on evidence. There are judges who made racial slurs and faced no removal from office.

Judges are public servants paid by taxpayer dollars. Voters should not wait to have a bad experience before the judiciary to recognize the importance of diversity on the bench.  We need to lobby our legislators to revise the ground-rules for shortlisting Circuit Court candidates and maintain contested judicial elections.  We need to push hard for Judicial Commissions and the Governor to select qualified minority candidates.

There are many foot soldiers for justice who have organized and joined our demonstrations May 11 and June 7 in front of the halls of justice at 8 Church Circle in Annapolis, Maryland.  Another demonstration is planned for July 19, 2017 from 11 am to 1 pm, because an all-white judiciary on the Anne Arundel County Circuit Court is not only indefensible, it is morally wrong.  Join us.

Claudia Barber is a 2016 judicial candidate for judge on the Circuit Court for Anne Arundel County.

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