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Why Black Judges Are Vanishing From the Bay Area Federal BenchU.S. District Senior Judge Thelton Henderson remembers a time when black judges were well-represented on the Northern District bench.
2013-06-21 04:19:21 PM
SAN FRANCISCO — President Barack Obama has a strong record when it comes to diversifying the bench. But in the Northern District, one minority group hasn't benefitted — his own.
The number of black federal judges in San Francisco, Oakland and San Jose has dwindled as those who broke barriers a generation ago have departed or taken senior status. So far, not one African-American has been named to succeed them.
As recently as 2008, there were four black judges on active status. Today, only Phyllis Hamilton, 60, handles a full caseload.
On Thursday, Obama nominated Shearman & Sterling partner James Donato and Judge Beth Labson Freeman of San Mateo County Superior Court, both white, to fill two pending vacancies on the U.S. District Court for the Northern District of California.
The situation is spurring reflection and a call to action from African-American lawyers and judges, minority bar groups and others who advocate for diversity on the bench.
"The Northern District is at a crossroads," said Bingham McCutchen partner Raymond Marshall, a member of Senator Dianne Feinstein's judicial advisory committee for the Bay Area.
He declined to discuss the committee's role interviewing and recommending potential candidates for the federal bench, as the senators keep that process private, but said the diminished number of black judges is a concern.
"There is a heightened and increasing sensitivity to the need to maintain if not increase the presence of African-American judges on the bench," he said. "It's something that is clearly understood to be front and center."
Marshall said he has personally reached out to African-American lawyers he thinks would "be ideal candidates." Similar recruiting has been quietly intensifying across the Bay Area.
"We've all recognized that we have to motivate more black lawyers and expose them to the benefits of the federal bench," said Justice Martin Jenkins of the First District Court of Appeal.
Jenkins, who served as a federal judge in the Northern District for a decade, switched to the state bench in 2008, and his seat went to U.S. District Judge Edward Chen, the first Asian-American to be nominated for an Article III judgeship. A seat on the federal court is not an obvious destination for many minority lawyers, who may not feel they have the right pedigree, Jenkins said. Hamilton, who rarely makes public appearances, is also rising to the call for more outreach. She has agreed to discuss her path to the federal bench in August on an Americna Bar Association panel that also includes Chen; Jack Lee, chair of the judicial advisory committee for Senator Barbara Boxer; and Fredericka McGee, general counsel to the speaker of the California State Assembly and a federal judicial vetter in the Eastern District of California.
"I guess it's our job, those of use who care deeply about this, to encourage younger lawyers to put themselves out there," Hamilton said.
"I certainly hope other African-American judges will be appointed before I take senior status," she added, noting she becomes eligible in 2017. "The number of active African-American judges has dwindled to one and in four years it will be zero unless new appointments are made."
It's not necessarily an alarmist scenario. The California Supreme Court has not had a black justice since Janice Rogers Brown left in 2005 for a seat on the federal appeals court in Washington, D.C.
Judge Brenda Harbin-Forte of Alameda County Superior Court, a fierce advocate for more women and minorities in the judiciary, has tracked demographics on the state bench for more than a decade. She says the stakes are particularly high in federal court because of its broad jurisdiction to hear discrimination and civil rights cases.
"Everybody ought to be up in arms," she said. "We're at a crisis point now, and I am very, very concerned that pretty soon we will be the invisible judges."
Nationwide, more than 30 percent of federal judges confirmed under Obama belong to an ethnic or racial minority. More than 40 percent have been women. He has exceeded Presidents George W. Bush and Bill Clinton in both measures.
Obama's imprint on the Bay Area federal bench has been substantial, with 10 of 14 seats opening up so far in his presidency. One of his legacies here will also be a more diverse judiciary.
Obama appointed the district's first Article III judges of Asian descent: Chen, a former American Civil Liberties Union lawyer who was hired as a magistrate judge, to a seat in San Francisco and Lucy Koh, then a Santa Clara County judge, to a vacancy in San Jose. The district's first Latina, former Alameda County Judge Yvonne Gonzalez Rogers, joined the court's Oakland branch in 2011. Earlier that year, former Santa Clara County Judge Edward Davila became the first Hispanic in more than two decades to serve on the Northern District.
For many lawyers concerned with diversity, those gains make it difficult to second-guess Obama's choices.
"At the time we had four black active judges, we had no Asian judges and no Hispanic judges," said U.S. District Senior Judge Thelton Henderson. "If you're talking about a broader diversity beyond black and white, broader diversity is desirable also. It is indispensable to a fair court that it represents the community."
Henderson, who started his legal career as a civil rights lawyer in the 1960s, has served on the court for more than three decades and was the district's first African-American chief judge. He succeeded Cecil Poole, who in 1976 became the court's first black judge.
Early on when attorneys arrived for meetings in his chambers, some would be stunned to find a black judge, he recalls. At least now, Henderson reflected, "people know there is a black guy on the court. Things like that have changed for the better."
For 10 years, Henderson was the Norther District's sole African-American judge. In the early 1990s, James Ware, then a judge in Santa Clara County, and Saundra Brown Armstrong, who had been Oakland's first black policewoman, joined the bench. Jenkins was confirmed in 1997. It was a profound moment, Jenkins said, not for achieving a particular benchmark but for demonstrating the opposite, that there were no numerical limits.
Henderson assumed senior status in 1998, and two years later Hamilton, a magistrate judge, was elevated to a newly created seat.
Then came the departures. Jenkins left in 2008, opting to serve on a state appeal court. Armstrong transitioned to semi-retired status in 2012, followed by Ware's retirement after 22 years on the bench.
It has not gone unnoticed that there is just one full-time black judge on the bench for the first time in two decades.
"We are very concerned about that steep drop in numbers," said Yolanda Jackson, deputy executive director and diversity director of the Bar Association of San Francisco. "There's been a cycling off and we need to figure out how to get that momentum back."
While Henderson and Armstrong still keep chambers, their day-to-day participation on the court is tapering off. Henderson, who is 79 and suffers from a degenerative autoimmune condition, has reduced his caseload to roughly 50 percent of a full-time judge and says he may soon retire. Armstrong, 66, has reduced her caseload by one-third and lives part time in North Carolina.
Henderson said he has no answer for why the number of black judges on the court is diminishing.
"I'm of the opinion there are many more qualified blacks now than when I got it," he said. "It's puzzling."
Among the African-American lawyers and judges who have applied for consideration by Feinstein and Boxer's vetting committees are Keker & Van Nest partner Jon Streeter; San Francisco Superior Court Judge Monica Wiley; and Covington & Burling partner Haywood Gilliam, a former prosecutor. Preston DuFauchard, a former Brobeck, Phleger & Harrison partner who spent eight years as assistant general counsel at Bank of America, is another name in the mix.
The federal vetting process, which is opaque and political, may be holding back minority candidates, said Ware, now a mediator with JAMS.
"It makes me want to reexamine the process of selection," he said, "because in the normal flow of things, the diversity we seek is somehow not being honored."
He is among those who worry the partisan confirmation process for federal judges makes it more difficult for lawyers who are outspoken or have been active on civil rights issues to advance. Chen's nomination in 2009, for instance, led to a nearly three-year battle, with Senate opposition centered on his civil rights work at the ACLU. There are only so many battles the White House can fight over its nominees, giving less controversial candidates an advantage.
And of course, money is also an issue; the salary of a federal district judge is $174,000, which is dwarfed by pay in the private sector.
Politics and finances are considerations for anyone seeking a federal court nomination. But with a smaller pool of candidates to draw from, such factors may result in relatively few African-Americans seeking appointment, said BASF's Jackson.
"When I talk to successful lawyers, who are in a position to apply for these spots, those are some of the concerns they have," she said.
For many proponents of judicial diversity, that means the ultimate challenge is improving the pipeline to the bench by encouraging minority students to apply to law school and helping them to succeed.
For now, leaders in the African-American legal community are doubling down on recruitment, said Alameda County Deputy District Attorney Venus Johnson, past president of the Charles Houston Bar Association and board member of the California Association of Black Lawyers. Both groups are encouraging members with judicial aspirations to consider applying directly to the federal bench, she said, instead of seeking to first serve a stint on the state court.
"First, we have to make sure we're applying," she said. "If we're at least applying, we have more leverage to push and lobby for our candidates."
Last year, the Charles Houston Bar Association, an African-American bar group based in Oakland, held two informational sessions on the judicial selection process. Jenkins, the California appeal court justice and former federal judge, hosted one event in his home.
Jenkins says he never thought about becoming a federal judge until Armstrong gave him a nudge. Now, he hopes to inspire a new generation of black lawyers.
"Given the history and contributions of black judges to the Northern District, it's sort of inconceivable to me there could come a time there's not one," he said. "So there's much work to do."
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