Production by ALI and the Bolch Judicial Institute. Music is ‘Headway’ by Kai Engel, from the Free Music Archive, CC BY.
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David Levi: Hello, and welcome to Coping with COVID, a podcast and video series that examines pressing issues for our courts and legal system during the time of the COVID-19 pandemic. I am David Levi, director of the Bolch Judicial Institute at Duke Law School, and president of The American Law Institute.
Today we look at how our courts and judges are addressing racism and racial disparities. It is a large and complex topic, and so many of our institutions are undertaking self-study and self-criticism. As we begin, let us acknowledge the horrific attack on the son and husband of one of our colleagues, US District Judge Esther Salas, our hearts go out to her.
Joining me today are four wonderfully capable judges from the state and federal courts. Cheri Beasley is the Chief Justice of the North Carolina Supreme Court and a graduate of our Duke Law Master of Judicial Studies program. So she is both my chief justice and a former student. Welcome Cheri. Goodwin Liu is an Associate Justice of the California Supreme Court and a member of the Council of The American Law Institute. Welcome, Goodwin.
Raymond Lohier is a judge on the United States Court of Appeals for the Second Circuit and also a member of the Council of The American Law Institute. Welcome, Ray. And Charles Breyer, “Chuck” we call him, is a senior district judge of the US District Court for the Northern District of California. He served as vice chair of the US Sentencing Commission from 2013 to 2017, and he is still a member of the Commission. Welcome, Chuck. We go back a very long way.
I thank all of you for joining me here today. Chief Justice Beasley, let’s begin with you. On June 2, you made a statement about the North Carolina Courts on racial equity, and other courts and chief justices have followed your lead. In your statement addressing racial equity, you said, and I’m quoting, “As Chief Justice, it is my responsibility to take ownership of the way our courts administer justice, and acknowledge that we must do better.” Can you expand on this point please? And tell us where and how the North Carolina courts must do better in assuring racial equity.
Cheri Beasley: You know, I think often as judges, we think that we have no role in addressing racial or gender disparities in our courts. I think often we believe that that responsibility lies with the legislature or with executive agencies. And I think we have to really rethink our role. All of us as judges should see ourselves as leaders of the judicial branch of government. We run our courts every single day. And I think we have to think differently about racial disparities and see that we really do have a direct responsibility to address them.
But certainly, our work and the disposition in our cases directly impact the outcomes in our cases. And we really ought to see that we have a viable role in thinking about how to do that. I think we also should be thoughtful about having constructive conversations among ourselves as judges. And I fully acknowledge that this is very, very difficult to do. But I also think that in doing that we have to be open to educating ourselves differently. I think we have to be mindful that in the very same way that we have CJEs around subject matter practice areas of the law. But we also have to do that around implicit bias and race. But not just race, but really the history of race in our legal system. And I think acknowledging that will really allow us to think differently—to really expound upon our own experiences and share them—and really offer a greater opportunity to allow greater confidence in the way we apply the rule of law in our courts.
David Levi: Thank you very much. Justice Liu, the California Supreme Court also issued a statement on racial equity and fairness, and did so this past June. And the statement says, in part, “We must confront the injustices that have led millions to call for a justice system that works fairly for everyone. Each member of this court, along with the court as a whole, embraces this obligation.” So perhaps you could expand on that a bit and explain what the courts, what the court—as a court or individual justices—will be focusing on as they seek to discharge the obligation that your statement identifies.
Goodwin Liu: Sure. Thank you, David, and thank you for putting together this program and it’s an honor to be on this panel with my esteemed colleagues. First, let me take the opportunity to applaud Chief Justice Beasley for her very early statement and leadership about these issues. I think Chief Justice Beasley when you spoke out you were one of the first if not the first of our state court leaders to really powerfully capture the moment and urge us all to be better. And I think that was an inspiration, certainly to our court and to many other courts around the country.
Look, I think the reality is that it’s almost cliché, I think, to talk about unconscious bias or structural racism or institutional inequity. These are almost like buzzwords today, but it should not be lost upon us that when you looked out at the massive protests that were happening, it didn’t escape my notice that some of the ire was directed at courts and at courthouses. I was just on a program the other day with our colleague, ALI member Justice Monica Márquez in Colorado, where she sits on a state high court, and she described the protests there, and the graffiti that was painted on her own courthouse, and the windows that were broken in her own courthouse.
Now, of course, none of us, I think condone any of that behavior. But it should not be lost upon us that this is not just a law enforcement problem. It’s not a problem just for legislature, that when people talk about the system, and they talk about institutional racism, they are talking about the courts. We are the system. And I think we have to reckon with that and come to grips with that, and I think our statement that our court made was partial acknowledgment of that.
Now, there are many things that we have to do. I think it begins right at home. In small ways, our own court, even before the incidents of the past couple months, had begun its own diversity and inclusion committee inside the court to look at our own practices and help make all the members of our court staff be more welcome. We have to look throughout the judiciary at implicit bias training and recommit ourselves to that. We have to have a much more robust access to justice agenda. Because we know that that set of issues disproportionately affects minority and low income communities.
But at the end of the day, I think what Chief Justice Beasley said also rings true, which is that we have to examine the law. And I think that we can do all the implicit bias training we want. but at the end of the day, what people do care about is what decisions courts make, whether it’s sentencing decisions, whether it’s how we define the doctrine of racial discrimination, all of these things I think have to be on the table in a sense for examination, if we are going to understand why it is that so many millions of people, not just in this country, but even throughout the world responded so powerfully to the idea that the justice system is not quite living up to its aspiration of equal justice under law.
David Levi: Thank you. It’s so interesting. We’re going to come back to some of the points that the two of you made in our more general discussion. Judge Lohier, you’ve been involved in some of the educational programs for judges. So we’re shifting gears here a little bit. The Federal Judicial Center has quite a good educational program for federal judges. What would you say — I know that’s hard to answer in a very short period of time — but what do you think judges need to know or do, and how should they talk to one another about race in their conferences and in their opinions?
Raymond Lohier: That is a difficult question. But before I start, I also want to thank you, David, for bringing together this terrific panel. I’m really honored. And I want to thank my fellow colleagues on the panel for everything that they’ve already said and done in this important space, and it’s just an incredibly important and timely conversation. So let me just give you a little bit of background on the educational programs that I’ve been involved in with the Federal Judicial Center, the FJC.
So a few years ago, then-Chief Judge Ted McKee of the Third Circuit and I were visiting the National Museum of African American History and Culture in Washington, DC. And for those of you who have not visited that museum, you should. It’s just a magnificent and deeply, deeply moving experience to go through the museum. You can’t do it all in one day. But everyone should try to do that.
And in part, I say that because it really provides you with a much better understanding. And I say this as an African American, a much better understanding the history of people of African descent in the United States, and perhaps more importantly, how fundamentally integral that history is to United States history, to American history. And you can’t really de-link those two things. Those stories are deeply, deeply embedded in each other.
And as you go through the museum, as we went through the museum, there was a number of federal judges who were there for a conference. And you see the movement from despair to triumph, from slavery to freedom, from really forms of evil, to forms of grace, throughout our history, our shared history, it made me and Judge McKee think that the experience should be an experience that every new federal judge has. So we approached the Federal Judicial Center, Jeremy Fogel, at that point, and counseled them, and it didn’t take a lot of advice to make a visit to the museum a component of baby judges school for new judges, federal judges.
And then, thereafter, to have a panel discussion on race and about race to which all new federal judges will be invited. And of course, as you may know, David, as a former federal judge, and Chuck, you probably also know, once you suggest something in federal judiciary, you sort of own it. So I was asked to participate in the first panel discussion. And it was just such a memorable experience with a panel of judges, including myself, and it was a racially diverse panel, roughly racially diverse group of judges in the audience. And we had a frank conversation about race.
And I gathered from the conversation that that was the first time that a number of judges in the audience had had a frank conversation about race. Not just in the legal context, but in the personal lived experiences that we all have in connection with race. I remember talking about my own experiences professionally, and personally, as an African American man and telling everybody that, here I am a Second Circuit court judge. But the very first thing I guarantee you that people will see when they see me or notice when they see me is that I’m a Black male.
And then we move on from there. So I do think that we should expand what’s been done with baby judges school and the new judges at the federal level to all judges. Now, I will also say that there are other opportunities for educating ourselves as federal judges, as state court judges, on this issue of race. And there are other venues and we can talk, for example, about judicial conferences, that at the federal level we have yearly or every two years. We can talk about other avenues for a discussion about bias, implicit or otherwise.
But those are all things that I’ve explored with my colleagues. One other area that I think is important and shouldn’t be forgotten is just the everyday interactions that we have as judges with each other, as a group, on an individual one-on-one basis at voting conferences, or in the context of board of judges meetings, where we can talk about issues. And again, these are uncomfortable conversations sometimes. But I think that there’s the space there to have these discussions.
David Levi: I think that’s such a great idea. And I think you’ll agree with me that maybe this reflects my Ninth Circuit background, but we’re not just talking about African Americans. We have so many different racial groups, tribes, and others with such interesting stories to tell who’ve had different kinds of adversity and find themselves in different circumstances. It’s a very, very rich and interesting topic and important to the context and how we understand the world around us, which is very important for judges.
Chuck, you’ve been on the Sentencing Commission now for several years. And when I looked up the commission today, I see that most of the positions are vacant, but you still have survived which is wonderful for the courts. But there’s something disturbing that’s been happening. Way back when I was a judge, Cliff Wallace at the Ninth Circuit asked me to chair the Ninth Circuit Task Force on race and religious fairness in the courts. And we did a study of sentencing. And we did not find racial disparity. But at that time, the guidelines were being applied very rigorously. And of course, the reasons why judges didn’t like the way in which the guidelines were applied and over time the courts have loosened, they’ve increased the discretion the judges have under the guidelines following the Booker opinion by the United States Supreme Court.
And the US Sentencing Commission now sees racial disparity in federal sentences. And in a 2017 report the commission found that Black defendants are accused of the same offenses and with the same aggravating and mitigating factors received heavier sentences than white defendants. And I think most troubling for judges, this is a quote, “The report found that Black male offenders were 21.2% less likely than white male offenders to receive a non-government sponsored downward departure or variance.” So that would be a downward departure based on the judge’s own assessment of the defendant. How should we think about this? And how should we address it?
Charles Breyer: Well, first, David, let me thank you for putting together this panel. I think that… I was sort of looking for silver linings. I think we all are in this terrible time of the pandemic. But one small silver lining has been that it’s given us an unparalleled opportunity to sort of think in an uninterrupted way. I and a number of my colleagues have been thinking about this issue, and in large part are prompted by the protest movement.
I must say that that has piqued my conscience and my sort of sense of self satisfaction, which I think a lot of judges have, which is “As long as I’m fair, as long as I apply the law equitably, that’s what I can do. That’s my job. And that’s what I can do.” And what it does is, while that’s true, assuming you can address the implicit bias—or unacknowledged bias—as long as you can do that, yes, you can try to be as fair as you are. But that doesn’t mean that the system is fair.
And the protests that we have seen, the attack on the courthouses in particular, is really a wakeup call for all of us because as judges, we try to embody the institutional concerns of being fair. And I think we’ve fallen far short of that. So then the question is, “Well, why? How has that happened?” And you go to one area that I know a little bit about, the Sentencing Commission, and I take a look at how has that law developed, and has it developed in a way that’s fair across the board?
So the idea of the Sentencing Reform Act of 1984 was a simple idea. It was that a defendant who is situated in a particular way, committing a particular federal crime should be sentenced the same way whether he or she is in Omaha, Nebraska, or San Francisco, California, or Miami, Florida. It shouldn’t make a difference as to sentencing. And so the sentencing guidelines were designed in a way to try to reduce sentencing disparities.
Congress at the same time told us look, you can’t consider things like what we would call the socioeconomic factors of an individual. You can’t consider a person’s race, you can’t consider a person’s education, you can’t consider a person’s job prospects. All you consider are these particular factors. And as a result, sentencings at the time that you took a look at it, David, were reasonably uniform, not completely, but primarily uniform.
Then the sentencing guidelines became elective, that is advisory. And judges at this point now can take into account all of those factors. And as a matter of fact, they arguably have to under the law. They have to take a look at the history and characteristics of the offender. So suddenly, you have back into the mix all of those factors that you thought you didn’t have to consider.
Well, the problem is, the real problem is, that of course those factors are racially based or sociologically based. That is to say, a white person will have on the average perhaps a better education, perhaps a better job prospects, perhaps greater family support. And so that person is given a more favorable treatment, than an individual who does not have those advantages.
So as a result, the disparities become even greater when you when you look at sentencing. When this report came out, I will tell you that the reaction of the members of the Commission, and the reaction of my colleagues was remarkable because each person said, “Oh, I’m not a racist. What are they talking about? These statistics must be wrong. There must be something inaccurate in the gathering of these statistics, or it’s about the other person. It’s not about judge me. It’s about judge X, or it’s about judges in this region, not judges in that region.” Well, the answer is no. The statistics are correct. And what they embody is really the sociological experiences and makeup of our country.
That is to say that the racism that is part of this society is then institutionalized in the sentencing guidelines. Let me give you an example, really a concrete example of what I mean. Everyone agrees, when I say everyone, that means I and few of my colleagues agree, that the criminal history, a person’s record, rap sheet is an indication of how dangerous that person is, or whether that person is likely to recidivate. A person who has a high criminal history has obviously recidivated more frequently than a person with a lower one. That’s just logic, okay.
So you say, “Ah, I want to take that into account.” And indeed, the guidelines do take that into account. One person who has a small record, person who has a large record will be sentenced differently under the guidelines. So you take a look at it, you say there, that’s a perfectly fair application. And there’s a principle. The problem is that when you take a look at the experience, as an example of African Americans, they are far more likely to be arrested and prosecuted than the white person in a particular neighborhood, it’s just the experience of America.
And so that person will, in all likelihood, have a higher criminal history. And then you apply the guidelines of the higher criminal history and that person will get a more severe sentence. So what this is to me, is as I’ve said, a call to take a look at these look at these factors and go behind the statistics and try to figure out why are these statistics showing what they are showing? Because clearly they’re showing the factor of race is being considered in connection with sentencing.
David Levi: Thank you, Chuck. That was extremely interesting. It’s not clear exactly how to address that. But I think the point that you make, and I’d like to put this out here to our panel generally, is that the courts are quite dependent on decisions that other agencies and parts of government make. We might draw a bit of an analogy between the 2017 Sentencing Commission Report and the 2014, I think it was, report of the Department of Justice about Ferguson, which was such I think a wakeup call, particularly for the chief justices around the country, that the courts are being used—the state courts—as revenue collection agencies for many of our municipalities. And that this has horrible, disparate impacts on minority communities and it’s extremely regressive, and it created a very difficult situation in Ferguson where the minority community had entirely lost confidence in its courts.
So whether it’s through evictions, or it’s through these fees and fines that are imposed on minor petty offenses, or whether it is federal sentencing, things that in the abstract are objective and non-racial have, when they’re translated through the system, they have these disparate racial effects. And the public understandably, is… At the end of this process there’s a judge saying to a defendant, “You owe X amount or you are going to jail if you don’t pay it, or you get this sentence or you get that sentence.” And this is what people experience. They experience this as a decision of the courts.
How do the courts in a sense declare their independence or push back on some of these decisions which they can’t actually make but which they also are defined by? And I’ll just throw that out there. Maybe Cheri, you could take the first crack at this. Because I know the conference of chief justices has been extremely concerned about what happened in Ferguson and what continues to happen around the country in terms of fees and fines.
Cheri Beasley: You know, part of what I heard Chuck say is that the process does not begin with sentencing. That there’s a whole process before you get that far. And what happens to Johnny at the point that he is stopped or picked up, makes a whole lot of difference. If Johnny is in a grocery store and takes a candy bar, what happens after that? It can very well determined what Johnny’s future even looks like. You know, Johnny is under the age of 16. And Johnny is taken home to his parents, scolded, he did a bad thing, and then they move on, and disciplined. And that’s one path.
But the other path that Johnny might take, depending on his race, might be that Johnny goes to juvenile detention and then that’s a whole other process. And the outcome for Johnny if Johnny goes to juvenile detention is very different than the outcome for Johnny if Johnny’s parents pick him up from the police station or the police drop him off at home.
There are disparities around fines and fees. In North Carolina, roughly almost 60% of the people who show up in our state courts come as self-represented litigants. Which means a whole host of things for these people as they’re trying to navigate through the court system. Currently we have self-help forms and we are about to start a website that will look a whole lot like sort of TurboTax, which will allow a self-represented litigant to go online, answer some questions and help them to fill out some pleadings in some of the cases that come before our court. You know, North Carolina is the ninth most populous state in the nation. We have a population of roughly 10 million. We have about a million people whose drivers licenses are revoked not because they in some way have committed a crime, but it’s because they were not able to pay the initial fines and fees assessed by the court.
Those fines and fees snowball, and it’s not uncommon for people’s driver’s licenses to be revoked 10 and 15 years down the road. You and I take for granted what a driver’s license means. But you know what a barrier that can be in people’s lives if they’re not able to drive legally. One of the things we’ve done is we’ve got quite a few driver’s license restoration programs. But that’s a lot of folks who have not committed a crime, who had an initial charge of speeding, couldn’t pay the fine of $200 and the cost of court which is another $250.
And to ask somebody to cough up $450, $500 at a time is a lot. And so the other piece around economic justice and racial and gender justice really does bear ability to pay. I mean the Supreme Court of the United States has told us as judges we should be asking about ability to pay and making serious inquiries about that. And I think in great measure as we talk about restorative justice and as we talk about ways to make sure that judges are making the kind of inquiries that they really should, so much is understanding the backstory.
And while the sentencing guidelines aren’t the same as the federal, certainly the state system, we do have them in North Carolina. And judges do have some leeway. But the reality is there are some guidelines that just are not in writing. When the party or the defendant—and often when we think about justice, we think about criminal justice, but I think we have to think about civil justice and juvenile justice and family justice. But often when the person walks into court, how they appear, how are they dressed? Do they come with a pocket of cash because they don’t use traditional banking systems, like many of us do? Who do they come with? Do they come with a clergy person or other family support system? Or do they come by themselves? Are they appearing before the judge in an orange jumpsuit or prison attire as opposed to a suit and a tie? Many of the kind of conventional things that we think about in terms of what success and forward thinking people should look like. So the other piece of that is we have to be careful about the way we impose our own judgments around what people look like, think like, what their success paths might be like. But fines and fees are real. And North Carolina has several urban areas, but it’s also quite a rural state.
And socioeconomic conditions are real in terms of how we think about the imposition of fines and even whether or not people have the ability to pay. And I think that probably also leads us to the bail bonds as well.
David Levi: Anyone else on this topic? Goodwin.
Goodwin Liu: I’d like to add another example. In addition to fines and fees and what Chuck said about sentencing. A few years ago, a case came to our court challenging the DNA Collection Act that exists in California, which authorizes law enforcement to collect DNA immediately upon any felony arrest. This is an issue that is an echo of the Maryland versus King decision by the US Supreme Court a few years before the case in our court. The California law differed in a few ways from the Maryland law. Most notably, it permitted this collection of DNA before any judicial determination or neutral determination that the arrest was valid and supported by probable cause.
So even in the field or at booking, the DNA can be collected. Now, our court upheld this act on a 4-3 decision, I was in the dissent. And I won’t get into the legal points of the dissent because that’s not really my point. My point is when you look at the statistics underlying who can have their DNA collected, it turns out that in California about one in five felony arrests result in no prosecution, and almost one in three results in no conviction of any kind. And so what that means is that the state, right, has authorized sort of over-collection in my view of people who are situated really no differently than an innocent citizen at the end of the day.
And yet all of that DNA sits in a repository. And there are expungement provisions and the like, but it turns out that the expungement is not automatic. And anybody who wants to get expunged has to fill out a form. Well, anytime you require someone to kind of take a step like that it’s going to be minimally utilized because people don’t know how to do it, they don’t know how to access it. And quite honestly, it’s quite easy to do. But if you look at the actual rates at which expungement occurs, it’s very, very low.
And so, what is the net effect of this? Well, it turns out that African Americans are about 6% or 7% of the California population. They are about 20% of the felony arrestees in California. And of those African Americans who are arrested, they are disproportionately released without prosecution or conviction. So what that means is that there is a disproportionate policing going on of this population as a result of such laws that basically then create almost like what I would argue is something like a surveillance mechanism. Which in a sense, is also sort of a windfall for the state because as Chuck said, about arrest histories and whatnot, there are these disproportionate arrests and that they disproportionately arrest people who don’t result in a prosecution or conviction.
Right. So these are the kinds of ways I think that on the face, facially neutral laws bake in a certain kind of systemic inequality that you can sort of quite tangibly track when you follow the numbers from the beginning to the end, and then it’s no accident that police like judges turn to where the information is, and the disproportionate policing of certain communities has a sort of snowballing effect as a result.
David Levi: Ray or Chuck, any thoughts on this interrelationship between the courts and other agencies of government and how the court’s reputation for fairness, which is so important can be affected. [crosstalk 00:37:17]
Raymond Lohier: Let me just say one thing very briefly, which is, I think that part of our jobs as judges, is to educate the other branches, legislators about the effects or the impact of certain laws, statutes, and so on. And that’s of course another component of legislation that we should think about when we think about race and different people on both civil side and criminal side, but particularly on the civil side having access to our courts around the country. We have a responsibility, institutionally and sometimes as individual judges, to educate our friends and others who are in the legislative business, as well as these other law enforcement agencies, frankly. Not just through our opinions but in other ways.
David Levi: Chuck, anything further?
Charles Breyer: I’m really mindful of the disparate impact that whatever we do as judges has on the communities that are before us. I think that there’s a strong movement to re-examine the length of sentences. That a longer sentence doesn’t necessarily result in a safer community. And there are a number of studies that demonstrate that.
Nevertheless, Congress has pointed to the fact that they’ve enacted this legislation called the First Step Act. And the First Step Act, among other things, and it does some very good things, by the way, but I don’t want to talk about those, I want to talk about something else. It speaks to the issue of early release from sentences. And it says that we should take a look at risk assessments, the Bureau of Prisons should, and then those people who are less likely to recidivate should be released.
So you’d say “Oh, well, that’s a good idea. That’s a fine idea. Let’s take a look at that.” And you see that the factors that are going to be considered are the ones that I said the last time: education, family support, and so forth. So suddenly, the First Step Act becomes what I call the “White Collar Relief Act.” And if you’ve committed a white collar offense, I promise you stand a much better chance of being released from prison than the person who has not. The drug offender, the addict, the person who doesn’t have the family support.
And who are those? Well, they are the communities who are the disadvantaged communities. So then you might say “All right, so what?” But the “so what” is so important, because the “so what” is that when you see that white collar offenders are released, minorities are not, they have to serve the full sentence, you understand how a certain degree of cynicism is furthered or nurtured. And this trust of the judicial system occurs as a result of what we do.
And so I come more from the school of ‘I understand justice is blindfolded.” But you know, you can take a peek, and one of the peeks under that blindfold, maybe what is it that you do? And what impact does it have on the community? Because I think we would all say as judges, it’s important to understand the disproportionate impact of whatever we do in terms of sentencing. It’s crucial, and it’s crucial to the acceptance of justice as being an appropriate remedy or institution in administering our civil society. So I applaud what Ray has done. I think that he’s absolutely right.
David Levi: Well, we’ve kind of talked about this already, but maybe we can be as concrete as possible. What steps can judges take and courthouses take to assure minority community members and others, that the courts, poor people generally, that the courts are attempting to be fair and equitable and that they hope — well they can do better, that they hope that they instill confidence in people, in their desire for justice. What should judges be doing? Anyone?
Raymond Lohier: So let me just point out three things that I think are important, but just steps as you point out. I don’t know that there is a full panacea to fully ensure true widespread public confidence across communities of color and other communities in this country. But I do think that the diversity of judicial decision making, that is judges, makes a difference. Obviously, at the federal level, the executive is the appointing authority for Article III judges, but there are magistrate judges, there are bankruptcy judges. There are any number of members of the judicial staff in a courthouse in the clerk’s office. Those are the people that the public will see in the first instance.
And I think that at least hiring or appointing those people with an eye to diversity might help to enhance public confidence in the judiciary at the federal level and presumably also at the state level. I think that forms of civic education are critical. We have only just started in the last few years at the federal level to really engage in civic education to try to educate the public about what it is that the courts do. And perhaps just as importantly, what it is that the courts don’t do or can’t do, as a way of enhancing public confidence and understanding in the courts and about the courts.
The third thing I would say as part of the civic education program is bringing people in and making it easier for people from different communities to come into the courthouses; to see what we actually do and being a little bit more transparent about what we do. And I’m not saying at the circuit level, for example, televising our voting conferences, but letting it be known publicly that the courthouses, courtrooms are public, and people should come in and be able to see the business of the courts happening in real time. I think that all three of those things are helpful. I also think that we need to be a little bit careful about our language when it comes to race, in particular in our opinions and in our speeches, and write or say things with some sensitivity to the history of race along many different metrics in our country.
David Levi: Thank you. I see Goodwin. Yes.
Goodwin Liu: That was well said, I would add three things. One is, I would underscore what Ray said about diversity in the judiciary itself and in the judicial branch. Our state bar actually, this week, just released a big report about the makeup of the profession here in California. And I think it’s fair to say that the profession as a whole is a kind of lagging indicator of society because people have long careers and long tenures and the people who are lawyers today are not necessarily reflective of the society that is coming up behind them. And this applies doubly so for judges who have very long tenures, and so we’ll always be a little step behind.
It also extends to who we hire inside the courts. As Ray knows, Jeremy Fogel and I have been involved in an ongoing study of diversity in law clerk hiring, which has been super interesting. He and I are interviewing 40 federal circuit judges to better understand what are some of the obstacles to getting more minority clerks into the highest rungs of the judiciary. There’s been a basically flat line for Black, Latino and even Asian [law clerks], despite the increasing numbers of those groups at the top schools over the past two decades.
So understanding that is really important. I think secondly, there is a very public facing role that judges can play, and it’s an uncomfortable one. Because I think judges are used to having a bit of separation from society, I remember when I was first appointed to the bench. The joke of it was that I never got any phone calls anymore. And the email kind of dried up and I was sitting in my chambers wondering where did the world go? And I think the profession and your friends and the outside world respect that separation. But that just means that judges, I think, have to take the first step to extend the hand outward, to say, you know, “I’m listening. I’m interested, I’m engaged. I want to hear what people have to say.” What Chuck said, I want to hear about experience. I don’t want to just sit and write, you know, in my chambers, as if it were all an abstraction. Different judges have different sensibilities about this, but I think we can all do more, to have a slightly more public facing role to outreach especially to those communities that feel less well-served and more unequally served by the justice system.
And the third thing I’d say is that I think judges do a very big role in agenda setting. And this goes back to something Ray said a second ago about education. You could sort of take the phrase, “if you see something, say something,” into how we do things, even in our judicial opinions. There are a lot of cases, I’m sure we encounter them every day, where the law is what it is, and there’s not a whole lot we can do even when we see something unjust or misguided as a matter of policy. Well, I don’t think it’s outside the judicial role at all to write a separate opinion or to write a paragraph that says, “You know what, this may need to be re-examined, because I’ve just looked at a case, right, that has these facts. And I’ve looked at the data that has these facts, and this is how it has been playing out.” And the relevant policymakers or in some cases, the judges upstairs, who write higher law than we do, may need to take a second look at some of these things.
I’ll give you an example. I’ve been very concerned about racial discrimination in jury selection for my entire time on the bench. I’ve written more than I want to say about that issue. And I think finally, actually that issue is getting some traction. In California there’s legislation that’s being proposed to rework the whole framework of how that discrimination is ferreted out. Our own court board appointed a jury selection work group to examine all phases of jury selection. So it takes time and persistence, but I think judges have a very important role in setting the agenda. And we do see a lot so if we see something, we should say something.
David Levi: Anyone else on this topic?
Charles Breyer: Can I just add to what Goodwin said. Yeah, I think judges have a continuing responsibility to educate, educate themselves, and to educate the public that comes before them. We have since I’ve been a judge, a long time, but in the beginning, we did very little in terms of educating jurors about their task. It was a really sort of vanilla operation. Can you be fair, can you administer justice fairly, any reason why you can’t sit on a jury? Now, we have a video that incorporates a whole section on implicit bias with examples of implicit bias, that a juror can see.
And who knows, does that work? What we think at least, like Judge Chen who’s led the effort in our court and other judges all across the country it tells a jury, a juror, be alert to these problems. Are you going to change a juror’s mind? Are you going to change a judge’s mind? I have no idea. Maybe and maybe not. But the problem is, you’ve got to alert them. People have to know, judges have to know. We have to know, we have to see the impact of what we do. And we have to factor in our experiences. So I would echo what my colleagues have said, because I think that that is a hope for the future.
David Levi: Cheri, many of the people that listen to this podcast and video will be lawyers and not judges. And I’m wondering, what would you ask them to do? Because so much of what can happen for the good will happen because members of the bar decide that they want to help the court. So what would you say to our friends in the bar as to what they can do for the courts?
Cheri Beasley: You know, all of us, as lawyers, and as judges really are guardians of the rule of law and of our courts. And, when we think about what happens in our courts, we know what’s happening. And so the people who come before the court, they’re told, “Go here, do this, fill this form out.” And I’m not sure that they always really understand why they’re being asked to do what they’re being asked to do, what the consequences could possibly be around filling out forms. Often we don’t have forms translated in languages other than English.
And you know, we’re in the middle of a pandemic, by the way, which is also compounded by heightened racial tensions across this nation. And this is an amazing time for all of us to feel a sense of empowerment, that even though we are faced with challenges all of us and certainly those that we serve, this is an amazing opportunity for lawyers to lead. And in all the ways that we see that there are concerns and issues in our respective courts and courts across the nation. Lawyers certainly see the same kinds of things. And it does take courage to lead but if you think about every single difficult period in this nation’s history, lawyers have been at the foundation of fortifying change.
I’m excited about the opportunity for lawyers and for judges to think differently about where we are. I’m excited about the opportunity to really provide access to justice and to make sure that people who come before our courts at least understand the process. It’s hard to have justice and this elusive thing we call justice if people don’t even understand what is happening to them when they come to our courts. And so it’s incumbent upon all of us, lawyers and judges, to make sure that that happens, whether it’s through procedural fairness. And I also think that in the same way that Goodwin talked about making sure people see us outside of our courts, in sort of non-traditional judicial roles.
You know, we’ve just started a Faith and Justice Alliance in North Carolina. We’ve been working on it for over a year, but what an amazing time to have the intersection between faith and justice and law. We’ve got places of worship of all denominations across the state and clergy working with lawyers to provide pro bono services for those who have civil unmet legal needs. So it’s an exciting time to think differently about how we do our work. It’s an exciting time to think about how lawyers and judges can partner with community groups around making sure that people are having their needs met.
And I think often we think about justice happening inside of our courtrooms. If you think about the fact that in North Carolina, one in five children is hungry, that really is an access to justice issue. If you think about how we deal with delinquency in our court, in our schools, there are wonderful opportunities. And you all know that North Carolina was the last state in the nation to raise the age and so we’re really excited also about our school-justice partnerships to make sure that there are alternate ways to really support young people; to think about why they might be misbehaving in school. Not to criminalize that behavior, but to ask questions around hunger and instability and other kinds of conditions around home and community. I mean, all of us have the capacity to do that. Does it take a stretch for us to think differently and frankly, to think outside of our own circumstances? It does. But that’s okay. I mean, this is a really wonderful opportunity for us to challenge ourselves and to push ourselves to do that.
David Levi: Well, I think you gave such a good closing there Cheri, that everybody is nodding their head and they agree with it. As in so many ways it’s a time of adversity, but that also means it’s a time of opportunity. Thank you all so, so much for taking your precious time to talk with us today. We all share the goal of a justice system that is fair and equitable and accessible to all Americans.
And we’re so fortunate to have the four of you as leaders in our courts and to help us reach that goal and aspire to that goal. This is ongoing work. It will never be finished. Every generation will have to renew the struggle and this aspiration, and I hope you will let us all know how we can help you in this important work.
This has been Coping with COVID, a podcast and video series produced by The American Law Institute and the Bolch Judicial Institute at Duke Law School. I am David Levi. Thank you for joining us here today.