Without criticizing any of the governor’s appointments to the state appellate courts during his tenure, all of whom appear to be decent and honorable people, it’s obvious from this article in the Daily Report that racial minorities and women have progressed little in the last few years. In fact, when Supreme Court Justice Carol Hunstein retires at the end of this year, the percentage of women on that court will drop to 11 percent (one out of nine justices). Even the United States Supreme Court, which now has three female judges on a bench of nine (33 percent), is more diverse in terms of gender. And the percentage of African American jurists on Georgia appellate courts is only 16.7 percent in a state where blacks comprise 30.5 percent of the population. These aren’t good numbers.
The reason diversity matters so much is that public confidence in our courts is stronger when the judiciary bears some broad resemblance to the community it serves, rather than an exclusive segment of it. Flipping the script with respect to the Georgia Supreme Court, for instance, imagine if there were eight female justices and only one male, or seven African American justices and only two justices who were white.
Also, selection practices that appear weighted against the appointment of competent and able lawyers on the basis of their sex or race offend basic principles of equality and fairness. Plus, the availability of a number of different perspectives among the judges who serve on our courts, particularly at the appellate level, better informs the decision making process and leads to better results. If, after all, we really thought that all judges saw things the same way, we wouldn’t need a high court with nine seats. One seat would be enough! Appellate jurists are often confronted with a number of choices, so who the judges are matters.
In sum, judicial diversity is not only a matter of legitimacy, equality and fairness. It goes to the very quality of the decisions made by our courts. A greater appreciation of this fact by those who have the power to appoint future appellate judges, as well as those who should bypass the appointment process altogether and offer themselves for election, would ensure that there is no further retreat from a diverse and more inclusive judiciary in the coming years.
Leah Ward Sears
Partner, Smith, Gambrell & Russell; former chief justice, Georgia Supreme Court