Gavel Gap report cover-page0001This past month, the American Constitution Society for Law and Policy released a report that examines diversity among state court judges. Their analysis from all 50 states and the District of Columbia revealed what the ACS is calling “the gavel gap.”

As described by the ACS:

“For most people, state courts are the ‘law’ for all effective purposes. But we know surprisingly little about state court judges, despite their central and powerful role. Unlike their counterparts on the federal courts, much of the relevant information is non-public, and in many states, not even collected in a systematic way. This lack of information is especially significant because judges’ backgrounds have important implications for the work of courts and the degree to which the public has confidence in their decisions.”

“In order to address this serious shortcoming in our understanding of America’s courts, we have constructed an unprecedented database of state judicial biographies. This dataset—the State Bench Database—includes more than 10,000 current sitting judges on state courts of general jurisdiction in all 50 states. We use it to examine the gender, racial, and ethnic composition of state courts, which we then compare to that of the general population in each state. We find that courts are not representative of the people whom they serve. We call this disparity The Gavel Gap.”

The primary report authors are Tracey E. George, Professor of Law and Political Science at Vanderbilt University, and Albert H. Yoon, Professor of Law and Economics at the University of Toronto.

As they conclude, “We find that state courts do not look like the communities they serve, which has ramifications for the functioning of our judicial system and the rule of law. Our findings are particularly important given the vital role state courts play in our democracy, in our economy, and in our daily lives.”

The complete report is available here and is only 28 pages. Thankfully, it’s also written clearly and accessibly. If you’d like a deeper dive, the ACS also permits anyone to download the underlying data to examine things for yourself.

Take a look. I’d enjoy hearing what you think of the gap in Arizona, or nationwide. And here are a few of the report’s findings.

Gavel Gap infographic 1-page0001

Gavel Gap report infographic 1

Gavel Gap report infographic 3Gavel Gap infographic 2-page0001

Gavel Gap report infographic 2

Arizona Attorney October 2008, where we got courts and judges

Back in October 2008, Arizona Attorney covered the history of courts and judges.

Sometimes, a good image is all you need to get you through the day.

And on this Change of Venue Friday, I’m operating on that principle. Occasionally, an image is so gripping, so arresting, that its appearance can transform your day from *yawn* to Wow. Kind of like:

cat flip-flop tumblr_nrgrapQ4ZE1s2yegdo1_400

Thank you to Dianna Náñez and Kerry Lengel for the great pic.

But no, that’s not the image I want to share. Today’s legal blog post is connected to judges and the ways they dress. It’s related to a post I wrote a few weeks ago about a crackdown on judge-robe-variety by the Florida Supreme Court. The post allowed me to recall Chief Justice Rehnquist’s golden chevrons.

After that post, I heard from Nedra Brown, a former State Bar of Arizona colleague. An attorney herself, she is now the Registrar (regulator) for the Ontario Association of Architects. And she reminded me about the amazing sartorial choices of the Judges of the Supreme Court of Canada.

Here they are, in all their glory:

Judges of the Supreme Court of Canada

Judges of the Supreme Court of Canada

Who’s in the picture? Nedra explains:

Top Row L-R: The Honourable Clément Gascon; The Honourable Andromache Karakatsanis; The Honourable Richard Wagner; The Honourable Suzanne Coté

Bottom Row L-R: The Honourable Thomas Albert Cromwell, The Honourable Rosalie Silberman Abella; The Right Honourable Beverley McLachlin, P.C., Chief Justice of Canada; The Honourable Marshall Rothstein; and the Honourable Michael J. Moldaver.

Nedra also provided me a list of what you have to wear to be admitted, the “Required Court Apparel For Call.” She explained, “Every candidate for call to the bar must appear before Convocation in full court apparel, which consists of:

  • black shoes
  • black or dark grey socks or black, dark grey or natural hose
  • black, dark grey or dark grey striped trousers or skirt
  • black gown vest
  • black gown
  • white shirt with stiff wing collar and white tabs”

I’ve never argued before any Supreme Court (never say never!), but I think the Supreme Court of Canada is now in my Top Two.

More closeup detail about what barristers have to wear to court is here, via Imperial Robes.

And if you’re in need of legal garments, Harcourts may be your haberdasher.

Thank you, Nedra! And everyone, enjoy your weekend—bewigged or not.

government shutdown budget

Dark days in Washington are having an impact on the federal courts. (Photo: Los Angeles Times)

The national news is all about the federal government shutdown lately, and everything about it is in debate—from its cause to its effects.

Although it will end sometime (there I go being all optimistic), the effect is my focus today—especially the effect on courts.

A few story’s in the past few days have addressed the shutdown’s impact on the courts. For example, in a story slugged “Nation’s judges brace for shutdown’s full impact,” National Law Journal reporter Zoe Tillman writes:

“As the end of the first week approached with no budget deal, … chief judges of federal trial and appellate courts across the country grappled with what to do once the money runs out.”

“‘We’re all working through it, trying to figure out where we’re going to go right now,” Chief Judge Morrison England Jr. of the U.S. District Court for the Eastern District of California said. “We’re in uncharted territory right now.’”

“Judges said they received guidance from the Administrative Office of the U.S. Courts on preparing for a shutdown, but each court was coming up with its own plan.”

The ABA Journal reports that courts are open “but not operating normally.” And in case the already-slow judicial confirmation process needed another roadblock, the shutdown provided one.

In what may (or may not be) partisan brinksmanship, lawmakers (mainly Democratic) have raised concerns and even scheduled hearings on the impact on the judiciary.

At a hearing yesterday, a panel of lawyers told the U.S. House Judiciary Committee that the impasse would cause great harm to the judicial system. (Read the article, also by Zoe Tillman.)

Panel of lawyers addresses House Judiciary Committee on the impact on courts of the government shutdown, Oct. 8, 2013 (Photo: Blog of Legal Times)

Panel of lawyers addresses House Judiciary Committee on the impact on courts of the government shutdown, Oct. 8, 2013 (Photo: Blog of Legal Times)

Another wrinkle came as the executive branch—in the persona of federal prosecutors—and the judicial branch disagreed over whether trials could be postponed. As the Blog of the Legal Times reports about the DC Circuit:

“Citing the government shutdown, U.S. Justice Department lawyers urged the U.S. Court of Appeals for the D.C. Circuit to postpone certain cases set for hearings last week and through the end of this week.”

“The court, in at least seven instances and without comment, rejected the government’s requests. The private lawyers in the cases were not entirely eager to have argument hearings pushed back to a date uncertain.”

What are you seeing in your own federal practice, in Arizona or elsewhere? Have you gotten word that your case may experience delays? Have the courts’ efforts to juggle resources to maintain constitutional requirements in criminal cases caused scheduling issues in civil trials?

Mark Harrison

Mark Harrison

Last week we heard some great news about an Arizona lawyer from the national organization Justice at Stake.

Mark Harrison is a member at Osborn Maledon, as well as the board chairman of Justice at Stake. On February at the midyear meeting of the American Bar Association in Dallas, he was given the 2013 Burnham “Hod” Greeley Award.

As a press release indicates, he was honored “for making a significant, positive impact on public understanding of the role of the judiciary in a democratic society.”

Justice at Stake is committed to aiding the judiciary. It “promotes increased public awareness of the need for a fair and impartial judiciary.” As the organization describes itself:

“Justice at Stake is a nonpartisan, nonprofit campaign working to keep America’s courts fair and impartial. Justice at Stake and its 50-plus state and national partners educate the public, and work for reforms to keep politics and special interests out of the courtroom—so judges can protect our Constitution, our rights and the rule of law.”

Gavel Grab adds a mention that Harrison “has worked as president of Justice for All, a nonprofit group dedicated to preserving a strong and impartial judiciary in Arizona.”

But … am I missing something? Unmentioned in the accolades is the fact that Mark was once the President of the State Bar of Arizona. Sure, Justice at Stake writes that he “led the local Bar with distinction,” but who the heck is that “local bar,” anyway? It was the SBA.

Maybe the omission signals a reduced “wow” factor associated with being a state bar president. But that would surprise me. I know that folks at Mark Harrison’s level have a drawerful of accolades and high-level experience. But even given that, bar president on the state level usually merits a mention.

And why not mention it? Isn’t the mentioning the only real payoff for the work of leading a bar? Remember, the days of a bar president are littered with meetings regarding section revenues, and lunches with tiny civic organizations, and information-sharing trips to exciting venues like Dallas or Duluth or a legislative grilling chair. After all that work, why not drop the title occasionally?

In any case, congratulations to Mark Harrison. We at the local bar look forward to continuing to collaborate with him on important issues.

English judge stuffy corporate

NOT how you want the public to view our courts.

“Comes now the blogger.”

Odd, right? Completely foreign?

Now you know how lay people feel when they have the misfortune to wander into an American courtroom when lawyers channeling Shakespeare decide to hold forth. Methinks it’s annoying.

That’s why a recent news story out of Tucson is so refreshing. As the Daily Star reports, a new project at the Superior Court for Pima County strives to make the legal process understandable to the public.

The project was spearheaded by Commissioner Dean Christoffel. In his job, he saw people “struggling to fill out forms dealing with divorce, child custody issues, child support, paternity and spousal maintenance.”

So Commissioner Christoffel sought out University of Arizona students “who could rewrite dozens of instructions provided to people representing themselves.”

Among the experts who helped with the “Simpla Phi Lex” project was Barbara Atwood, the Mary Anne Richey Professor Emerita of Law at the UA Law School.

The complete story is here. (And the University’s story is here.)

Here at Arizona Attorney, I still smile every time I re-read the two articles we were privileged to publish that Dean had written. (Read “A Ripping Good Yarn Told With Verve” and “Algebraic Apoplexy.”) This is a lawyer and court official who knows how to write!

Maybe it’s my own fascination, but we run a good number of articles about improving legal writing. Last month, we published a news story about an initiative to simplify the Justice Court rules. And our February issue had a cover story urging clarity rather than ornate language.

Congratulations to Dean Christoffel, as well as everyone affiliated with this new great project.

“Funding Justice: Strategies and Messages for Restoring Court Funding”This month, a useful document was released by two organizations committed to a strong and fully funded judiciary. We’ll see if it makes a conceptual difference in the contentious nationwide fight over court funding.

“Funding Justice: Strategies and Messages for Restoring Court Funding” was authored by Justice at Stake and the National Center for State Courts.

The report is refreshingly detailed and focused on strategies (placing that word in a report’s title is never a guarantee that the authors will provide any; these authors do). As the authors say, “The guide is entirely based on a nationwide opinion research project that included focus groups, a poll of American voters, and interviews with chief justices, legislators, and others closely involved in debates around court funding.” And at least a portion of the recommendations arose out of focus groups held in Phoenix in February 2012 (so you may have been a part of the research).

National Center for State Courts logoYou can read and download the entire report here.

I appreciated Gavel Grab’s summary and analysis of the report. Author Peter Hardin also includes links to news stories about the courts’ budget crisis.

Hardin also points us to another post worth a look (for detail and extreme candor): this blog post out of the Institute for the Advancement of the American Legal System. There, Bert Brandenburg (Executive Director of Justice at Stake) and Jesse Rutledge (Vice President for External Affairs at the National Center for State Courts) explain their thinking in how they crafted the report. Their exposition reveals an awareness of the value of political nuance.

Justice at Stake_logoAs Brandenburg and Rutledge explain:

“[The report] advises, for example: ‘Focus on harm to taxpayers and the economy—not damage to the courts.’ It underscores the idea that ‘It’s not about you. It’s about them.’

“[It] also warns against adopting a message that ‘[c]ourts are a ‘separate and co-equal’ branch of government and thus should be treated with greater respect in the budget process’ because it ‘falls on deaf ears with the public,’ the guide says. What’s more, ‘Americans overwhelmingly felt that the courts should not get special treatment, and the judiciary should be expected to tighten its belt—like everyone else.’”

I think the report reflects a deep understanding of the crisis and the persuasive challenge that court supporters face. Feel free to pass it on to anyone who would benefit from it. And let me know whether you think this tool is likely to make a bigger impact in the conversation than approaches from the past.

Curious to know what judges think of Facebook?

It may not be advisable to stroll up to a jurist and ask her or him; they may get kind of prickly. Instead, on this Change of Venue Friday, flip through a comprehensive new report from the Conference of Court Public Information Officers (or, as I like to call them, some of the hardest-working PIOs in any sector; follow them on Twitter here).

The complete report, titled “2012 CCPIO New Media Survey,” is here, and it paints an evolving picture of judges’ comfort level with social media, at least in regard to the propriety of using it themselves. (Use by lawyers and—ugh—jurors is left for another study.)

Or, as the cheeky Wall Street Journal Law Blog said, judges today appear to be “less freaked out” by Facebook and Twitter.

Reporter Joe Palazzolo writes, “Fewer of them hate the idea of incorporating new media in their professional lives, and more of them are convinced they can use such tools in their personal lives without ethical issues.”

Ha! “Fewer of them hate” it. That may not sound like we should break out the bubbly, but it is quite a change from even a few years ago.

Here is a chart from the CCPIO study showing the shift.

Judges are warming to social media, a new study says in August 2012

And here are a few of the findings from the study:

“The 2012 data reveal several major conclusions:

  • “The participation of judges in the survey continued to climb, as did their use of the technologies surveyed.
  • “The percentage of judges who strongly agree that their own use of the technologies in the survey poses no threat to professional ethics has doubled since the first year of the survey. This applies whether the technologies are used in personal or professional lives.
  • “The percentage of judges who strongly agree that courts as institutions can use the technology without compromising ethics has also doubled since 2010.
  • “The percentage of judges who strongly agree that new media are necessary for public outreach has doubled since 2010.”

Very impressive.

(I am amused, though, that we continue to hold fast to that moniker “New Media.” Ironically, the last time I hectored readers about the oddity of that phrase was when I covered an event put on by court personnel. Is “New Media” a court thing? Let’s all just stop it. After all, social media is descriptive; New Media is kind of a throwback, sort of a Steamboat-Willy-gapes-at-moving-pictures vibe. New Media is old. If judges can change, so can we. Onward.)

Have a great weekend. And as you post a status update in social media, think of a judge.

Steve Tully

A panel Wednesday morning at the State Bar of Arizona Convention examined a relationship often in the news—the one between the legislative and judicial branches. Speakers with experience as elected officials, lobbyists and think-tank leaders wrestled with a topic on which many find disagreement common.

“Striking a Balance: Relations Between the Legislature and the Courts” included moderator David Earl and speakers Steve Tully, Clint Bolick, Sally Rider and Jerry Landau.

Panelists opened by sharing their initial thoughts on the challenges that a good working relationship faces.

For example, Sally Rider of the UA’s Rehnquist Center said that the tension between branches is exacerbated by a failure to communicate. Jerry Landau agreed: “When one branch doesn’t understand the role of the other, we have problems.”

Bolick, of the Goldwater Institute, was more pointed in his opening remarks. After praising the Arizona Constitution, he continued.

In regard to ballot referenda, “Courts have used the single-subject rule so much as to prevent the Legislature from presenting various important issues to the people. And that is discomforting. If there is one value that our Constitution elevates above all, it is the right of the people to control their government.” Limiting referenda too strictly restricts that power. “Courts have overstepped.”

Things quickly got interactive, as attendees would have predicted on such controversial topics.

L to R: Clint Bolick, Sally Rider, Jerry Landau

Among those hot-button issues discussed was merit selection, especially as embodied in a November Arizona ballot referendum titled Prop 115. In a conference at which at least two other panels will focus on merit selection, this morning seminar grew into a significant conversation on the ballot proposition.

In fact, it was not the panel but an audience member who raised merit selection. Lawyer Tom Ryan enlivened the debate when he stood at the microphone.

“The idea that the Legislature respects the court system is a fallacy. We have a supermajority of Republicans in the House and Senate. … [The Legislature is] controlled by ALEC [American Legislative Exchange Council], and they have an agenda: to close the courthouse doors. The idea that Prop 115 will improve merit selection is a fallacy; it simply gives the Governor the unfettered ability to choose judges.

David Earl

Bolick responded, agreeing that under Prop 115 the Governor “will control far more of the system” than ever before. But he added that the State Bar currently “has a monopoly over picking the lawyer members” of the judicial nominating commissions. And Bolick said he believes that the Bar, which takes positions on many public policy issues, should not have any role.

And even under the new possible regime, Bolick added, “The system should not be controlled entirely by the Governor and the State Bar. That upsets the checks and balances system.”

Bolick said that, personally, he will probably vote yes on Prop 115, but the Goldwater Institute has decided not to take a position.

Audience member and former State Bar President Mark Harrison rose to vociferously oppose Prop 115.

“This was a compromise that did not need to happen, and which is a solution in search of a problem. Justice O’Connor supports the current system, and the Arizona Town Hall called it ‘the best functioning part of our state.’”

He concluded by saying (with a smile), “I urge everyone to vote no—as many times as you can.”

Bolick responded: “I share a lot of your concerns, but I don’t think the system is as good as it can be.” He said that lawyers may know a lot about judicial candidates, and they should provide input. “But the State Bar should not choose them.”

Former Judge Noel Fidel spoke briefly.

“It would have been better to fight than compromise. This destroys merit selection from within.”

Among the audience-speakers on the topic was Whitney Cunningham, currently the State Bar’s First Vice President (and President-Elect at the close of Convention). He rose to explain the State Bar’s role, and why it decided to support the compromise that led to Prop 115.

“What people should understand is that not preserving merit selection was a real possibility that was on the table. If this passes, the State Bar will still have a role, and a formidable role.”

“The Bar was at the negotiating table, and we did what we thought was necessary to preserve merit selection in our state.”

This past weekend, the State Bar of Arizona carried out its Law Day event, which I mentioned before (and hope to report more on soon).

Law Day, of course, is a nationwide celebration of the rule of law. Communities and entities celebrate it in many ways. That makes tomorrow’s event sponsored by the Maricopa County Bar Association worth your attention.

The MCBA’s event is titled “The Crisis in Court Funding.” That is an endeavor that brings attention to one of the most serious impediments to widespread access to justice.

Among the panelists will be former Arizona Chief Justice Ruth McGregor.

More information, and a registration page, are here.

Former Arizona Chief Justice Ruth V. McGregor

Alabama Chief Justice Sue Bell Cobb

Two seemingly unrelated stories came across my desk this week. But in their own ways, they demonstrate modern-day challenges faced by the courts — and by anyone who finds their legal matter brought before a judge.

The first story comes from Alabama. There, faced with severe budget cuts, the Supreme Court Chief Justice, Sue Bell Cobb, has ordered a reduction in the number of days for trial. She also authorized the closure of all courts one day per week.

“The Chief Justice said years of underfunding are catching up. She predicted defendants will sit in jail longer while waiting for trial, people with civil suits and divorce cases will wait much longer to have them heard by a judge, and the courts’ ability to generate fines and fees to help fund state government will decline.”

In what may be the quotation of the year, Cobb said, “The courts are not a nicety. They are a necessity.”

I had the pleasure of meeting Chief Justice Cobb back in January, when I attended a criminal justice conference in New York. She spoke eloquently about the challenges facing state courts. Little did attendees know that Alabama would provide a graphic example of how bad things are getting.

Today’s open letter by the American Bar Association President stresses the difficulties. Stephen Zack recommends enactment of legislation that would provide a new funding source for courts:

“The answer is to leverage an existing program in the Department of Treasury to collect long-overdue court-ordered fines, restitution and other financial obligations from federal tax refunds. The National Center for State Courts estimates that there’s an accumulated total of $15 billion in such fees. Courts and crime victims do not have the resources to collect on those avoiding their responsibilities. This program would offer a practical, fair way to secure those funds.”

More on that as the story develops.

The second story was a Q&A with a law professor on the topic of “life without parole: the new death penalty.”

Read the complete conversation with Virginia Law Professor Josh Bowers.