Gov. Nathan Deal will soon fill at least three vacancies on the Georgia Court of Appeals. Randy Evans, co-chair of the governor’s Judicial Nominating Commission, in a March 12 article, expressed “worry” that the pool of candidates for those seats would lack diversity. According to Evans, “When we have the most diverse group of applicants, minorities and women get on short lists.” Tellingly, Evans did not say minorities and women actually get appointed.
Mr. Evans’ stated concern for a diverse applicant pool stands in stark contrast to the statements the article attributed to the governor. The governor reportedly said in 2016: “[i]s racial diversity more important than excellence and credentials and ability? It’s a factor, but is it the most important factor? I don’t think so.” To his credit Evans rejected the governor’s formulation and expressed the reality that “focusing on diversity isn’t a compromise on quality.” Nevertheless, the worn canard espoused by the governor keeps being trotted out. The pernicious trope of diversity as antithetical to excellence continues to be used as cover for the appalling lack of inclusivity in the governor’s appointments where it matters most.
The governor’s stated attitude regarding judicial inclusiveness may be indicative of why the Judicial Nominating Commission (JNC) has few minority members—2 out of 21. This is the body which makes the recommendations of candidates to the governor for open or newly created seats. If our top elected official holds the belief that championing diversity somehow equates to less than qualified individuals serving as members of the JNC, we have some work to do. And those of us, whether you are white, black, brown, Asian, man, woman, or Hispanic, who believe that the JNC should be more diverse should not sit by silently.
The Judicial Conference of the United States, in announcing an opening for a new United States Magistrate judge for the Northern District of Georgia recently stated: “[t]he essential function of courts is to dispense justice. An important component of this function is the creation and maintenance of diversity in the court system. A community’s belief that a court dispenses justice is heightened when the court reflects the community’s diversity.”
It is somewhat difficult to discern exactly what the governor has in mind when he professes a focus on excellence and credentials. He recently appointed a Supreme Court justice who had previously worked for him, but who had practiced law for barely 10 years. He recently appointed an attorney general, the state’s chief law enforcement officer, who had to activate his bar license just prior to taking office. For one of his first superior court appointments, the governor appointed his own executive counsel to the Superior Court of Fulton County even though the individual in question had missed the application deadline that other candidates were required to observe. The governor received a short list to fill the most recent Fulton County Superior Court appointment consisting of an African-American male, an African-American female and a white female. Predictably, the governor chose the white female. There have in fact been no African Americans appointed to the Fulton Superior Court bench, in the last 18 years, since the year 2000.
It is time to expose this myth—that diversity is antithetical to excellence, that African-American judicial candidates have been overlooked because the selections are being made purely on the basis of judicial qualifications—for the insidious canard that it is. The history of judicial appointments under this governor simply does not match his pious rhetoric.
A review of the governor’s appointment history is instructive. Under this governor the Court of Appeals and Supreme Court benches have been expanded. The governor has had seven opportunities to appoint new judges to those benches. He has appointed one woman of Asian descent and one African-American male to the Court of Appeals. The African-American male replaced a retiring African-American male. He has appointed two white females. The governor has made a number of appointments to the Georgia Supreme Court—no minorities and one white female. The remaining appointees have all been white men. Although African Americans represent 30.5 percent of the state’s population, they comprise 18 percent of the judges on the Georgia Court of Appeals and Supreme Court. If no African Americans are selected in the current round of appointments, African American representation on the Court of Appeals will fall to a mere 16 percent.
Mr. Evans mentioned the governor’s appointment of Judge Eleanor Ross to the State Court of DeKalb County and her subsequent appointment to the federal bench. What he did not say is that Judge Ross was replaced by a white female appointee, leaving the DeKalb State Court trial bench with no African-American judges in a county with a 55 percent African-American population.
By virtue of his office, the governor has the power to appoint judges. But, it ill serves us all when he chooses to try to excuse and justify the calculated exercise of his power by denigrating the capacities of broad swaths of the state’s citizens. Applying for an appointment and making a short list has not translated into appointments. At some point, the most qualified diverse applicants may look at the talent that has been repeatedly overlooked and become discouraged from applying at all. They may conclude that the very act of applying is tantamount to complicity in what amounts to a “merit selection process” in name only.
We are at a crossroads. It is time for that process, at its highest level, to live up to the lofty rhetoric which Randy Evans has repeatedly espoused but is powerless to implement, as the ultimate authority resides in the governor himself.
Advocacy For Action Inc. and PAC
Retired Judge Thelma Wyatt Moore
Judge Bettianne Hart