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Judicial Elections And Diversity On The Bench: “Justices Have To Reflect Their Population”

A recent panel at the Center for American Progress discussed the role of diversity, and lack thereof, within state supreme courts.

CREDIT: Flickr user wstrachan1.

A wide array of speakers met earlier this month at “Judicial Elections and Diversity on the Bench,” a discussion hosted by the Center for American Progress drawing attention to how the current state supreme court system continues to fail many of its diverse constituents, especially including those wishing to serve on the courts. Generation Progress is part of the Center for American Progress.

“Our report finds that since 2000, the overall reelection rate for white supreme court justices was 90 percent,” Center for American Progress Action Fund Executive Director Angela Kelly said in her opening remarks. “But for Latino justices, they were only successful 67 percent of the time, and for African American justices, they were successful 80 percent of the time. So these are big disparities.”

The event included Rep. G.K. Butterfield (D-NC) as the keynote speaker, and the panel discussion consisted of the Brennan Center for Justice’s Kate Berry, Washington State Supreme Court Justice Steven C. González, Mother Jones reporter Pema Levy, and former Ohio Supreme Court Justice Yvette McGee Brown. Each participant offered unique perspective on a complicated issue that often flies under the national radar, drawing on their past experiences.

“Our goal is to have a country where citizens touch their courts,” Kelly said. “Seems reasonable. And that means justices have to reflect their population.”

Butterfield, who is part black, recalled his father being allowed “special permission” to register to vote without having to take the literacy test that was administered in North Carolina as a way to block African Americans from voting. But when officials found out that the senior George Kenneth Butterfield was encouraging other African Americans to vote, that special permission was threatened. These memories of his father led the younger Butterfield to a career in the justice system.

“It is true that in my former life I was a judge. And in my life before that, I was a lawyer,” Butterfield said. “So I’ve spent 30 years of my life in the courtroom in one way or another.”

Before his career as a U.S. Representative, Butterfield served as a justice on North Carolina’s Supreme Court, appointed in 2001. However, he lost the judicial election for his seat on the bench in 2002. Butterfield currently represents the first district of North Carolina, which is one of the poorest districts in the country.

Unlike the U.S. Supreme Court terms, which are for life, justices on the North Carolina Supreme Court are vulnerable after appointment to an election race for an eight-year term. The races are formally non-partisan, but each justice’s political affiliation is known and it’s a standard practice for political parties to make endorsements in the contests. Monetary spending on campaigning and advertising by third parties is also permissible. North Carolina ranks second in judicial election spending, according to a report released by the Brennan Center for Justice.

“I think for most people, there is a disconnect between who sits on their courts, the issues before those courts and understanding how someone gets there,” CAP’s Vice President for Legal Progress Michele Jawando said, as moderator of the panel. “Most people don’t make the connection that we also elect our judges.”

For González, there are both flaws and merits to judicial elections, but the key solution is education of the voters.  He credits his reelection with the sway of 10populous counties in Washington state, while his opponent collected the votes of all other 29 counties.

“In a low-information environment, people tend to go with what is comfortable,” González said. “And for some, my name is not a comfortable name … There is one good aspect to [judicial elections] and that is it makes the candidate get out and meet the people and learn the whole state.”

For Brown, her campaign process for her bench seat after appointment was ideal. She had raised more money than her opponent, Sharon Kennedy, won the endorsements of the major players and carried the Ohio State Bar Association’s “highly recommended” rating. However, she, along with her Republican colleague both lost the election due to the name recognition their opponents garnered.

“After the election, every major newspaper opined about the Ohio Supreme Court looking like an Irish picnic.” Brown said, highlighting the lack of voter education.

But both states that elect their judges and select their judges by merit have issues with diversity, said Berry. There’s no way to tell which system is better, given the minimal amount of data and studies that exist, and there needs to be more research done.

“I think the best thing we can do is take a multi-factor approach,” Berry said. “We want to try to fix it in all systems and all ways.”

Irene Burski is a reporter for Generation Progress, covering criminal justice.

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