MIAMI – Following the end of her tenure as president of the National Association of Women Judges, Miami-Dade Circuit Judge Lisa Walsh issued a resolution on Oct. 8 asking her fellow state and federal justices to increase the percentage of women and minorities nominated for court-appointed roles.
In an interview with DBR Daily Business Review, Walsh stated, “A lot of these appointments can make or break a lawyer. They can be very lucrative, they can establish a new area of practice. … They go right to the bottom line."
Professor Eddy Ng, an expert on workplace diversity at Dalhousie University, told the Florida Record that the lack of fair minority representation is especially prevalent in the court system. Ng states that “the legal profession (attorneys, judges) is one of the least racially diverse professions in the country. There is greater racial diversity among comparable professions such as accountants, physicians and engineers.”
Such local newspapers as the Sun-Sentinel and the Miami Herald also affirm Ng’s claim. The Sun-Sentinel warns that “diversity is critical to our nation's promise of equal justice for all. Diverse viewpoints produce robust court proceedings and enhance the legitimacy of the courts in the eyes of a diverse community.”
The Miami Herald lamented that “amid growing friction between (Florida Gov. Rick) Scott and the legal community, the Bar last year formed a task force on diversity that urged Scott to hire a diversity officer to reverse the decline in appointments of black judges. Scott has not done so.”
Ng insists that “justice is never blind. Judges (and attorneys) are influenced not only by their legal knowledge (training) and past rulings, but also by their own experiences, backgrounds, and socialization. Diversity of experiences and backgrounds is necessary to ensure neutrality and objectivity.”
Walsh supports this assessment and says the current court practice “shuts out people who haven't had the opportunities in the past. As the diversity of the bar increases, the diversity of court appointments should increase as well."
Walsh’s statement that the bar has increased in diversity reveals her view that diversity is a natural development if left unencumbered. In 2012, UCLA law professor Richard Sander and former New York Times Supreme Court reporter Stuart Taylor published their book "Mismatch: How Affirmative Action Hurts Students It’s Intended To Help, And Why Universities Won’t Admit It." Their exhaustive study centered on how the idea of affirmative action has resulted in the placing of disadvantaged minority students in competition with better prepared classmates (a process the authors call mismatch), causing the minority students to either attend a less reputable law school (the cascade effect) or drop out altogether.
Racial preferences did increase the number of minority applicants taking the bar exam, like Walsh asserts, but at the price of flooding schools with accepted minorities with lower grade point averages and standardized test scores than other students. The vast majority of these students dropped out of law school in their first year or failed the bar in larger numbers than white or Asian students. Mismatch, writes Sander and Taylor, was “roughly doubling the rate at which blacks failed bar exams.”
The resolution, drawn up by Walsh and Philadelphia attorney Bobbi Liebenberg, has been adopted by six national organizations and is being considered by the American Bar Association.
This effort is crucial for those believing in the redeeming virtues of diversity. “As the nation becomes increasingly diverse in terms of race, ethnicity, and other dimensions of diversity,” Ng tells the Florida Record, “it is equally important for federal courts to reflect the plurality of the nation, as decisions have a greater impact and far-reaching consequences for all citizens.”
According to the latest census data from Florida, 55 percent of residents are white, close to 17 percent are black, 24.5 percent are Hispanic/Latino, and 3 percent are Asian. The Miami Herald reported in 2014 that “84 percent of judges are white, 9 percent are Hispanic and 6.6 percent are black.”