Social cohesiveness is indispensable to the smooth functioning of a representative democracy. In a democracy, tensions that arise between various political, economic, racial and ethnic groups have to be addressed and resolved through mechanisms that provide a sense of fairness and impartiality in the administration of justice. Under our form of government, the judiciary serves that important function.
Apart from assuring that the judiciary adheres to certain minimal procedural due process norms, there is another consideration that serves to legitimize the judiciary as an impartial arbiter of justice. This consideration involves the perception of fairness - fairness in process and fairness in results. Such a perception plays a critical role in promoting the social cohesiveness among racial and ethnic minorities that serves to integrate these communities into our body politic. Without such a perception, these communities lose faith in the system of resolving conflicts and the dispensing of sanctions for criminal behavior.
An important component in developing this perception of fairness among racial and ethnic minority communities is the degree of minority representation within the ranks of the state judiciary. A disparity between the percentage of the state's minority population and the percentage of minority state judges serves to frustrate the formation of this perception of fairness.
The promotion of proportional balance between these two percentages is not based upon a notion that minority judges will favor minority criminal defendants or minority civil litigants or that there is an entitlement to such representation. Rather, the support for such a balance is based upon another premise - the presence of members of a given racial and ethnic community in a state-sanctioned mechanism for adjudicating issues affecting the general welfare of such communities serves to legitimize this mechanism.
Legitimacy can be achieved in a variety of ways. First and foremost, the consent of the governed provides the necessary legitimacy for a constitutional form of government. Ordinarily, such consent would be presumed for all of the governed. However, when our constitutional government was created in part to maintain the institution of slavery and the equal treatment of racial and ethnic communities only became an official federal governmental policy with the recent passage of the 1964 Civil Rights Act and the 1965 Voting Rights Act, this presumption no longer applies.
Given this history, a second avenue for creating legitimacy is instilling a sense of ownership and having a vested interest in the well being of our society. This second avenue of fostering legitimacy in the state's judiciary is enhanced when these stakeholders have a perception that there is fairness in the administration of justice and the selection of those individuals administering justice. A fair selection procedure should result in a state judiciary that is reflective of the state's diverse communities, thereby creating a perception of legitimacy.
Unfortunately, in Washington there is a disparity between the percentage of minority judges and the percentage of minority population groups. According to the 2000 Census, out of the state's total population of 5,894,121, approximately 945,541 or 16 percent are members of the largest minority communities consisting of 441,509 or 7.5 percent Latina/o, 184,631 or 3.1 percent African American, and 319,401 or 5.4 percent Asian. However, when the latest student enrollment figures (Oct. 2004) at the kindergarten levels are examined, these percentages increase substantially and are a harbinger of an increased presence of minority communities within our state: Latina/o Ð 16.7 percent; African American Ð 5.9 percent; Asian Ð 7.7 percent. The combined minority kindergarten group percentage is 30.3 percent. When these figures are compared to the percentage of minority judges in the state's various courts, there is a severe disparity.
According to the Washington State Minority and Justice Commission, based upon an informal survey conducted in 2004, the number of minority judges is a very low number at all levels of the court system: none of the nine justices on the state Supreme Court is minority; only two of the 22 Court of Appeals judges are minority; of the 195 Superior Court judges authorized under state law, only 19 are minority; of 110 District Court judges, only 4 are minority; and only 12 of some 97 Municipal Court judges or 12.4 percent are minority. All told, of 433 judicial officers statewide, only 37 or 8.5 percent are minorities.
Moreover, these aggregate numbers do not present the complete absence of certain minority groups in specific judicial categories. For example, according to this survey, there were no Latina/o judges serving in the state's district or appellate courts. Similarly, there were no African Americans serving in the district courts. Irrespective of the specific focus on minority representation in the state's judiciary, there can be no serious debate regarding the low number of minority judges.
This disparity in judicial representation and minority population percentages formed the basis for undertaking an examination of factors that would account for such a disparity. One focal point involved the possibility that campaign finances were having a negative and disproportionate impact on minority judicial candidates.
At the request of the King County Bar Association, students from my Voting Rights class, Maili Barber, John Prosser and Ryan Prosser, conducted a study of campaign finance disclosure statements filed with the Public Disclosure Commission. Due to the large number of documents, only one election year (2005) for King County was studied. Furthermore, the study was limited to those candidates who filed their campaign disclosure forms in an electronic format.
As an initial matter, there were very few contested judicial elections at the municipal, district and superior court levels. Moreover, in those few contested elections, there was an even smaller number involving minority candidates. Finally, in those contested elections involving minority candidates, the minority candidates were successful. Given the small sample analyzed, conclusions regarding whether campaign finances are a factor in judicial elections involving minority candidates would be premature.
Perhaps the most salient finding of this study was the small number of minority candidates in judicial elections. Such a small number inevitably leads one to examine whether the available pool of qualified candidates was a factor in limiting the number of judicial candidates.
To serve on the district, municipal and superior court benches one must be an attorney, with an additional qualification of five years as an attorney for appellate court judicial positions only. A review of the number of minority attorneys in the state for 2006 provided by the Washington State Bar Association reveals that of 25,854 attorneys, 287 or 1.5 percent were Latina/o, 342 or 1.8 percent were African American and 796 or 4.2 percent were Asian/Pacific Islander, a total of 7.5 percent. The comparable minority judicial percentage for the District, Municipal and Superior Court benches is 8.7 percent.
In comparing these figures, one could reasonably conclude that the small number of minority judicial candidates may be due to the small number of minority attorneys, but that the small number of minority judicial candidates should not be of concern since the minority community is over-represented at the trial court level. Such a conclusion, however, would be unjustified.
In assessing whether the method for judicial selection is fair, an argument contending that the appropriate basis for comparison should consist of the number of minority attorneys appears reasonable on its face. After all, one cannot be a judge without being an attorney.
In an analogous employment discrimination setting, the appropriate basis for comparison often consists of those qualifications that are related to the performance of a specific job. For example, if an employer seeks someone to fill a bookkeeping position, a person should have minimal mathematical skills to adequately perform the requirements of the job.
Although this analogy may appear to support an applicant pool limited to attorneys, the analogy upon further inspection actually supports the use of minority populations as the basis of comparison instead of an attorney-driven definition. The bookkeeper in the above example functions in a very limited capacity. The specific job position is to apply mathematical skills to produce a report that serves the need of the employer or business. In sharp contrast, the function of a judge is to administer justice.
The administration of justice is not directed at attorneys. The administration of justice is directed at an attorney's clients, not the attorney. Clients, both in the civil and criminal context, are members of the general population. Moreover, the administration of justice, when viewed in the larger societal context, directly affects everyone, not just attorneys.
As administrators of justice, judges are functionaries of the state and are responsible for the impartial application of state laws to the state's entire population. Accordingly, in assessing whether the state's judiciary suffers from a lack of diversity, the appropriate measure for comparison is the state's minority population, not the state's minority attorney population.
When measured against the state's minority population, there is a lack of diversity among the state's judiciary. As noted above, the combined percentage of the largest minority population groups is 16 percent, while minorities comprise just 8.7 percent of the trial court bench. In addition, in the not-too-distant future the combined minority population for these groups will rise to 30.3 percent, yielding an even greater disparity if present trends continue. Finally, as noted above, the combined minority population figures do not present a complete picture where there are no Latina/o or African-American judges at some court levels.
As an institution affecting the lives of all communities, the state's judiciary plays an important societal role in developing and enforcing those judicial rulings that govern our behavior, our treatment of others, our business dealings and, increasingly, our stewardship over our environment. To solidify the legitimacy of this institution, other than by constitutional or statutory fiat, constituent stakeholders should have a vested interest in supporting the mechanism that administers justice.
Such a vested interest for minority communities can only be enhanced when there is a perception that the judicial selection process is not only fair, but also results in a fair representation of minorities in the state's judiciary. This perception of fairness will have other benefits as well. It will clearly promote a social cohesiveness that will serve as the foundation for the creation of leadership from our educational, political and business institutions - a leadership that will benefit us all and assist our transition to a more diverse future.
Joaquin G. Avila is an assistant professor of law at the Seattle University School of Law. He can be reached at avilaj@seattleu.edu.
