Bar Bulletin

Bar Bulletin

12% … That’s Barely a Concept

December 2021 Bar Bulletin

During last month’s Annual Bench Bar Conference, it was wonderful to hear Chief Justice Gonzalez mention that the Washington State Supreme Court is likely one of the most diverse Supreme Courts in the country. Indeed, according to an April 2020 article in Slate magazine, our Supreme Court is the most diverse in the country (followed by the Supreme Court of California).1 It was also terrific to hear Chief Judge Martinez of the U.S. District Court for the Western District of Washington remark on the increased diversity of the judges who have recently been nominated — three of whom have been confirmed by the U.S. Senate — for that court. While we should celebrate this progress, we must also acknowledge that there remains much more work to be done before our courts look like the communities and populations that they serve. 

In July 2019, the Brennan Center for Justice at New York University School of Law, published a remarkable and detailed study of diversity in State Supreme Courts.2 Among some of the more astonishing, and depressing, statistics in the Brennan Center report are:

Since 1960, more than a quarter of the states (13) have never had a person of color serve on their highest court. Six other states have seated only one justice of color. 
The Supreme Courts of more than a third of the states (18) have never seated a Black justice. 
Although men of color make up approximately 19% of our population, they only make up 8% of state Supreme Court justices. The data are even worse for women of color, who make up approximately 20% of the population, but only 7% of state Supreme Court justices. 
Persons of color make up at least 25% of the population in eight — Nevada (51%), Alaska (39%), Delaware (38%), Alabama (34%), Rhode Island (27%), Arkansas (27%), Tennessee (26%), and Michigan (25%) — of the 24 states that have all-white Supreme Courts. 
The ABA’s Profile of the Legal Profession paints an equally bleak picture as of 2021. According to the ABA’s Profile, as of 2021, there are 28 states that do not have a Black justice, 40 states that do not have a Hispanic justice, 44 states that have no Asian American justices, and 47 states that do not have a Native American Justice.3

As the Brennan Center report notes, elections have rarely been a path to the bench for people of color. Only 4% of justices who were initially elected were of color, and only 12% of justices who were initially appointed were of color. “The question of whether judicial elections or appointments yield more diverse benches has loomed large in reform debates over how to respond to the growing politicization of supreme court elections, including whether states should do away with elections altogether. … Incumbent justices of color have also disproportionately been challenged and lost elections once on the bench, as compared with incumbent white justices.”4 

These findings by the Brennan Center are confirmed by our own state’s 2020 elections — the last time justices on the Washington State Supreme Court were up for election. According to VotingforJudges.org (an incredible resource for information about judicial elections in our state that is supported by, among others, our sister organization — the King County Bar Institute), four of our justices were up for election but only the two justices of color — Justice Whitener and Justice Montoya-Lewis — drew challengers.5 Justice Montoya-Lewis’s challenger appears not to have received ratings from any of the various organizations that rate judicial candidates. The only rating that Justice Whitener’s received was a rating of “Not Qualified” from KCBA’s Judicial Evaluation Committee.

These data (and anecdotal evidence) leave little (or no) doubt that our courts simply do not reflect the diversity of the community and the populations that they serve. There is however something you will be able to do soon to continue to move these numbers in the right direction. Since 1948, KCBA has conducted evaluations of judicial candidates and evaluations of judicial officers. For reasons of space, I will focus on the work of the Judicial Officer Survey Committee but would encourage all of you who are interested in the work that the Judicial Candidate Evaluation Committee does to visit that Committee’s webpage.6

Every four years the JOSC conducts a survey of attorneys practicing in King County Superior Court and on an alternative four-year cycle a similar survey is conducted of attorneys practicing in the courts of limited jurisdiction. The last Superior Court survey was published in 2020 and the next survey of the courts of limited jurisdiction will be published in 2022.7 The survey is by no means meant to be scientific; instead — to quote the JOSC’s website — it is meant to be “the scuttlebutt of the courthouse writ large. Nothing more, nothing less.” The survey results, when considered in combination with candidate ratings, debates, candidate fora, and other sources of information about judicial candidates and officers provide the public with information necessary for voters to make informed decisions about judicial races.

In addition to providing information about individual judges, the judicial surveys also present information to the bar, the bench, and the public about the performance of the local judicial branch as a whole. The survey is not meant to, and indeed does not, compare the performance of one judge against another. It simply represents the opinions of those attorneys who choose to express them. Because attorneys are encouraged to rate only those judges before whom they have recently appeared, it would be both foolhardy and statistically incorrect to draw comparisons between judges based on the survey results.

Carl Forsberg, who many of you know, chairs the JOSC. He works with approximately 18 other KCBA members to plan and execute the survey. As with many of our other committees, the members of the JOSC are volunteers, and most of them have served on the JOSC for over four years. The JOSC currently has, and throughout Carl’s tenure as Chair has had, several retired judges from King County Superior Court and from the courts of limited jurisdiction, which allows the JOSC to ensure that the survey addresses issues and questions that are important not just to the bar but also to the bench. For example, in the survey that many of you will soon be receiving there will be new questions directed to virtual and hybrid trials and to issues related to diversity, equity, and inclusion (topics that are of pressing interest to both the bench and the bar if last month’s Bench Bar Conference, which was attended by close to 150 participants, is any indication). 

The JOSC prides itself on a confidential and fair survey questionnaire and for the last ten years the JOSC has seen increasing participation numbers for each survey conducted. The voting public, the bar, and the bench owe a huge debt of gratitude to the volunteers on the JOSC and KCBA staff that help plan and execute the surveys and then disseminate the information to our various stakeholders. 

One of my greatest professional privileges has been litigating the first patent case that the Honorable Carlton Reeves of the U.S. District Court for the Southern District of Mississippi presided over.8 Judge Reeves is an incredible jurist and, for anyone who questions why it is critically important to have a judiciary that is diverse and representative of the communities and the people it serves, I recommend you read his comments upon receiving the Thomas Jefferson Foundation Medal in Law from the University of Virginia.9 Trying to capture Judge Reeves’s eloquence and passion in this column is a fool’s errand, but as he so eloquently notes (when discussing the importance of having diverse juries): “As Justice Thurgood Marshall said, ‘if we deprive the legal process of the benefit of differing viewpoints and perspectives on a given problem,’ then we are left with ‘one-sided justice.’” This sentiment, no doubt, applies with greater force to the people who serve on our bench. 

Although we cannot all speak as eloquently or passionately as Justice Thurgood Marshall or Judge Reeves on the importance of diversity to our system of justice, we can all do our part to continue to tip the scales towards a more diverse — and by extension more just — judiciary. As a small first step, I encourage you to support the work of the JOSC and complete the survey of judicial officers of the courts of limited jurisdiction when you receive it. 

Kaustuv M. Das is the President of the King County Bar Association and an attorney with Intellectual Ventures. He can be reached at KCBABoardPresident@kcba.org or at (425) 247-2431

1 Mark J. Stern, Washington State Now Has the Most Diverse Supreme Court in History, Slate.com, April 17, 2020 available at https://slate.com/news-and-politics/2020/04/grace-helen-whitener-
washington-supreme-court.html (last visited November 11, 2021). 

2 Laila Robbins and Alicia Bannon, State Supreme Court Diversity (Brennan Center for Justice July 23, 2019). For anyone interested in diversity in the courts this report makes for fascinating reading, and I cannot recommend it highly enough. 

3 ABA Profile of the Legal Profession at 73. You can download a copy of this year’s Profile of the Legal Profession at https://www.americanbar.org/content/dam/aba/administrative/news/2021/0721/polp.pdf (last visited September 9, 2021).

4 State Supreme Court Diversity at 13. 

5 http://www.votingforjudges.org/20gen/supreme/index.html (last visited November 11, 2021). You can find more information about the King County Bar Institute at https://www.kcba.org/About-KCBA (last visited November 9, 2021). 

6 http://www.kcba.org/For-Lawyers/Judicial-Resources/Judicial-Candidate-Evaluation-Ratings (last visited November 11, 2021). In addition to providing information about the Judicial Candidate ratings process (note that the Committee encourages you to request a rating at least 8–12 weeks in advance of when you need your rating), the website also has links to KCBA’s Fair Campaign Practices Committee, current judicial openings, the Governor’s Uniform Judicial Evaluation Questionnaire, the criteria used by the Committee in rating candidates, and a lot of other extremely useful information for anyone seeking either election or appointment to the bench.

7 Until the pandemic threw this schedule off, you could think of the Superior Court surveys being published on Olympic years and the survey of the courts of limited jurisdiction on World Cup years. 

8 I can’t say tried, because as with most patent cases it eventually settled, but I will always remember fondly my various trips down to Jackson, Mississippi, for hearings, arguments, and depositions. 

9 Hon. Carlton W. Reeves, Defending the Judiciary: A Call for Justice, Truth, and Diversity on the Bench (April 11, 2019) available at https://law
professors.typepad.com/files/4-11-19-judge-reeves-speech.pdf (last visited November 11, 2021). 

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