When Jacqueline Nguyen was 9, her parents made the heartbreaking decision to send their children alone from Ho Chi Minh City so they would not be killed by the violence in April 1975 when South Vietnam fell to Communist forces. The children were taken to the military airport and one by one, tossed over a fence. Her father’s colleague caught the children on the other side and ran them to the evacuation plane.
Jacqueline’s father faced certain execution if captured, but refused an offer to leave without his family. A miracle reunited Jacqueline and her siblings with her parents and led the family to an American civilian who saved the family by declaring them to be part of his family, which allowed them to be airlifted out of Saigon. The family arrived in California and lived in a refugee camp. Jacqueline’s parents worked as laborers and later became small business owners.
They believed anything was possible in America.
But even they could not imagine that one day their daughter would be the first Vietnamese-American woman judge on the Superior Court bench of the State of California.
And then on January 27, 2010 to be amongst numerous state and federal judges in honor of the confirmation of their daughter as the first Vietnamese-American Article III judge in the history of the United States.
History in the Making
With the confirmation of Justice Sonia Sotomayor to the United States Supreme Court, it is undeniably a historic time not only for the judiciary, but for the country. And as to the recent confirmations of Jacqueline Nguyen and Dolly Gee to the Central District of California, the first Vietnamese-American and Chinese-American woman respectively to serve as Article III federal judges, historic progress towards achieving a diverse judiciary, is not reserved for Washington, D.C. but here locally.
Encouragingly over the past 20 years law school populations have been growing more diverse. Many states such as California as well as the Los Angeles County Superior Court have implemented policies to diversify their bench. President Obama too, has made a pledge to diversify the bench.
However, despite these successes and the best of intentions, in this nation, as well as in California and the San Fernando Valley, the diversity of judges lags behind the diversity of the general population. As noted in a 2009 empirical study that spanned a twenty-year period — Myth of the Color-Blind Judge done by Professor Pat Chew and Robert Kelley of the University of Pittsburgh School of Law and Carnegie Mellon, respectively — in the federal courts out of a total of 805 active judges, non-White judges constitute about 19% of the bench. Of those, 11% of judges are African Americans, 7% are Hispanic or Latino, and fewer than 1% are Asian Americans. In some places such as the San Fernando Valley, the discrepancy is even larger.
The 2008 Brennan Center for Justice, at NYU School of Law’s study Improving Judicial Diversity is a comprehensive study addressing the magnitude of the problem and how successful courts are at appointing women and racial minorities.
With regard to gender, although women make up approximately 50% of the population state judiciaries are predominantly male at almost every level. Only approximately 26 percent of state court judges are women. Today almost every other demographic group is underrepresented when compared to their share of the nation’s population. White males are overrepresented on state appellate benches by a margin of nearly two-to-one. Some research suggests the situation for African-Americans have worsened, for example with regard to the enrollment of African-American students in law school, as well as the number of African-American jurists as they are said to be retiring at a rate quicker than they are being appointed.
Carlos Moreno Associate Justice of the California Supreme Court, notes that diversity on the bench is a critical issue. Justice Moreno was the son of Mexican immigrants, grew up near downtown Los Angeles, attended its public schools and is well known now for his courageous dissent to overturn Proposition 8. Diversity he said, is “extremely important…if only for the sake of the appearance of justice.” Both the California and national benches, Moreno noted, were once “very, very segregated.” Not only does diversity on the bench encourage citizens to “buy into the justice system,” Moreno said, it also helps to have a multiplicity of views, from judges of varying racial, economic, and social backgrounds.
Indeed, “diversity” can mean any number of different goals, such as including people from different genders, ages, economics, sexual orientation, or professional backgrounds. Increased diversity does not mean appointing judges who have pre-determined positions but instead those who have different ways of looking at the world.
Those having experienced prejudice or bias have often developed empathy resulting from that experience. Justice Ruth Bader Ginsburg comments that a “system of justice is the richer for the diversity of background and experience of its participants.” Justice Ginsburg herself grew up with the sense of being an outsider. Being both a woman and a Jew made her conscious of harmful stereotypes against outsiders. She recalls vividly driving in rural Pennsylvania past a bed and breakfast. The sign on a lawn read, “No dogs or Jews allowed.” She was surprised at the reaction of legal employers. Though on the law review at Harvard she was rejected by every potential employer. When interviewing, employers did not hesitate to post on the signup sheets for interviews, “Men Only.”
Magistrate Judge Edward M. Chen, who was recently re-nominated by President Obama to be the first Asian-American federal judge in the Northern District of California stated, “How can the public have confidence in such an institution if it is segregated; if the communities it is supposed to protect are excluded from its ranks?”
There is empirical support for the proposition of a more diverse judiciary. Professor Chew and Kelley’s study noted above, found that a judges’ race significantly affects outcomes in workplace racial harassment cases. Their data demonstrated that African American judges rule differently than White judges, a finding, counter to the traditional myth that the race of a judge would not make a difference. Professor Chew and Kelley believe the answer as to why race matters is that race affects a judge’s ability to appreciate the perspective of a plaintiff of another race.
A second study, “Female Judges Matter: Gender and Collegial Decisionmaking in the Federal Appellate Courts,” from the Yale Law Journal, by Jennifer L. Peresie, concluded that a judges’ gender mattered both to what the bench looks like and to what it decides. The study looked at 556 federal appellate cases involving allegations of sexual harassment or sex discrimination in violation of Title VII of the Civil Rights Act of 1964. The study found that plaintiffs were at least twice as likely to win if a female judge was on the appellate panel.
Progress but Still Room for Improvement
Nearly 20 years ago, the policymaking body for the California judiciary, the Judicial Council made a commitment to promoting diversity. Progress has been made. In 2009 the diversity of the bench within California increased; women now constitute 28.8 percent of the bench, and in terms of ethnicity the number of non-white jurist has increased to 22.1 percent of the judiciary.
Many credit the improvement due to Governor Schwarzenegger’s appointment of appointment secretary, Sharon Majors-Lewis, who is both the first woman and African-American to hold the post. In an effort to draw a broader array of applicants, she revised the application. It now asks with regard to other non-trial experiences/skill sets such as mediation, as well as other disciplines such as administrative or family law. Indeed, the governor’s more recent appointments are more diverse. Women now account for approximately 33.6 percent of Schwarzenegger’s appointments, and about 23.6 percent have been minorities.
The Los Angeles County Superior Court also views the issue of diversity to be of great importance and boasts being one of the most diverse benches in California; including more Latino judges, proportionately, than any other large court in the state.
Still, while Los Angeles may be diverse as compared to other counties, there still is room for improvement. Judicial Council statistics reflect that only 32.2% of the Superior Court bench are women. Los Angeles County is ranked 10th out of 45 California Counties with regard to gender parity.
67% of the population in Los Angeles County are ethnic minorities, yet only approximately 30% of the judicial officers are minorities. The greatest disparity is reflected in the Latino or Hispanic population in Los Angeles County. 45% of the population are Latino, yet only 9.4% of the judicial officers are Latino.
The San Fernando Valley is extremely rich in cultural diversity, and has become more diverse in the last decade. According to the U.S. Census Bureau, the population of ethnic minorities in the San Fernando Valley from 2000 to 2008 has grown, most notably in the Hispanic or Latino community, while the white population has dropped. Whites constitute 41.8% of the population, and 56% were minorities. Of those minorities, 42.4 % were Latino or Hispanic, 3.6 % African American, and 10% Asian.
The judiciary in the San Fernando Valley unfortunately does not reflect the community’s rich diversity. Women make up far less than half of the judiciary. Of the 83 judicial officers permanently assigned to San Fernando Valley courthouses, 31.2% of them are women.
With regard to ethnic diversity, the San Fernando Valley judiciary is significantly less diverse. Only 7.2% of the jurists sitting in the San Fernando Valley’s courthouses are minorities. What is particularly striking is that only 4.8% of the jurists are Hispanic or Latino given that approximately 42% of the community is Hispanic or Latino.
Barriers to a Diversified Bench
The Brennan Center Justice study identifies a number of obstacles to the diversification of the bench, as well as a number of best practices to increase diversity.
Implicit bias is said to be a primary reason hindering efforts to diversity the bench. Many studies by influential experts such as UCLA Professor Jerry Kang note that nearly all people stereotype others unconsciously. It arises from ordinary and unconscious tendencies to make associations. Substantial evidence shows the magnitude of implicit bias toward members of disadvantaged groups is significant and often conflicts with conscious attitudes and intentional behavior. The research demonstrates why a focus on diversity must include proactive steps to counteract the unconscious tendency to appoint white male judges. As Professor Jerry Kang explained, “[a]s a threshold matter, in order to correct bias, decision makers . . .must be made aware of their own implicit biases.”
Many prospective female and minority applicants are not applying. They have a pessimistic perception that applying for a judicial opening would be pointless. They may not see themselves as fitting their stereotypes of what a judicial candidate should look such as not being a prosecutor or being of a different political party than that of the governor.
Improving Diversity on the State Courts, a research project conducted by the Lawyers’ Committee for Civil Rights under Law and the Center for Justice, Law, and Society interviewed women and minority judges as to what they thought were the key factors that contributed to their rise to the bench. In nearly every interview the judges spoke of the importance of political influences, as well as networking and mentoring. Some voiced concerns that minority candidates don’t have the political connections who could help them through the appointment process.
Collaborative, Systematic Efforts
The Brennan Center study recommends that an effort to increase diversity is best done by a collaborative, systematic effort. Also crucial is leadership of high-ranking officials who can set the proper inclusive tone. If diversity is going to be a priority, the effort must be from top to bottom, including a Governor who pushes the issue, to the minority and women bar associations who must recruit qualified candidates. While judicial nominating committees need to be background checkers, those courts desirous of diversifying the bench must also see themselves as “headhunters” taking responsibility for recruiting.
Maryland is a model of how a state can diversify its bench with a pro-active leader with a vision and a process that embraces diversity and encourages qualified men and women of all groups to apply. During Governor Parris Glendening’s term (1995-2003) his appointments were half women and 28% nonwhite “breaking a long tradition in Maryland of predominantly white men.” In addition, the state’s first Hispanic and Asian-Pacific judges were appointed as well as the first female judge and the first African-American judge to the Anne Arundel County Circuit Court. Today Maryland is considered to have one of the most inclusive courts in the nation with 18.3% minority judges and 31.3% women judges.
Voices of America: Enhancing Diversity on the Bench
President Obama, Governor Schwarzenegger, and the Los Angeles County Superior Court all voice concern regarding diversity on the bench. The extent to which sincere effort is made to diversify the bench is a work in progress.
It is not only a historic time, it is a hopeful time. Change comes slowly, but with the inspiration of the recent appointments of Judge Jacqueline Nguyen, a recognition of the value that different voices bring to the judiciary and affirmative steps led by someone with vision – that what Jacqueline Nguyen’s parents know will become a reality – that anything is possible in America.
By Hon. Cynthia Loo, Los Angeles County Superior Court
Cynthia Loo has been a judicial officer with the Los Angeles County Superior Court for the last ten years. She currently is the Chair of the MultiCultural Bar Alliance of Southern California’s Diversity on the Bench program and serves on the American Bar Association’s Standing Committee on Minorities in the Judiciary which leads the association’s efforts to foster greater diversity in the judiciary. She is also on the State Bar of California’s Council on Access and Fairness and on the governing boards of both the Asian Pacific American Women Lawyers Alliance and the Asian Pacific American Bar Association. Referee Loo wishes to thank past SFVBA president Richard Lewis, Hon. Patricia Ito, and the Hon. Dalila Corral Lyons for their assistance with this article. She can be reached at [email protected]