Arizona Bar members—and State Bar of Arizona staff—were treated to a unique presentation on Monday afternoon. It was a CLE that examined a topic that is often a lightning rod, but that is enshrined in the state Constitution.

The CLE was called “Diversity Considerations in Judicial Merit Selection.” Appropriately, the headliner (if we may use that term) was Chief Justice Rebecca White Berch. She shared her perspectives on the role that the “D” word plays in establishing who may don the judicial robe.

Other panelists were Doug Cole of HighGround Public Affairs, Assistant United States Attorney John Tuchi and lawyer (and former aide to then-Gov. Janet Napolitano) Tim Nelson.

Each of the panelists has had experience with one or more of the commissions on judicial court appointments. As such, they could explain and reveal a little about how commissioners weigh applicants’ diversity, along with many other areas of experience.

The panel was ably moderated by Senior Bar Counsel David Sandweiss.

Sandweiss and the Chief Justice explained the founding documents that enshrine diversity as a value—both in the state Constitution and in a set of principles that the State Bar adopted in 1992. As Chief Justice Berch recalled, Sandra Day O’Connor had once said that she would hope a wise old man and a wise old woman would come to the same conclusions. But data have shown that there may be significant differences in the weight evidence receives, the Chief said, depending on whether a judge is a woman or a man. Neither is necessarily correct, but diversity on the bench helps assure that multiple viewpoints are represented.

Chief Justice Rebecca White Berch

As Chief Justice Berch said, “Decisions we make in life are part and parcel of all that we are.” Because of that, she said, lawmakers—and the State Bar—decided to value diversity.

Doug Cole echoed the position that commissioners are charged with looking at the whole applicant, not just a narrow slice of their resume. He amused the audience with some responses that he has found most surprising to Question 64—the query found on the judicial application in merit-selection jurisdictions that requires applicants to describe their experience with diversity—again, a constitutional requirement.

  • “I am white and male.” (That was the complete response.)
  • “I have friends who are diverse.” (I shortened the actual response, but not by much.)
  • “Not applicable.”

Cole said that such responses miss the point, because diversity and facing adversity may occur in anyone’s life.

“The best applicants’ answers may be moving and touching, including life experiences and important turning points in people’s lives.”

So yes, Cole said, if you’re a white male, you still may have a good understanding of diversity.

John Tuchi agreed with Cole, but spoke also about the uncertainty of a word that has been given no delimited definition. Therefore, the assessment of what diversity means may vary among and between commissions and commissioners.

Tim Nelson described the statistics that reveal some strides have been made in increasing the ranks of minority judges. The bench is currently comprised of judges who are 71 percent male, 29 percent female and 16 percent minority. Those numbers nearly mirror the membership of the Arizona Bar—though they trail the breakdown of state residents.

“Right now, we have a bench that matches the profile of our Bar.” Whether that is sufficient is a broader and more challenging question.

Panelists also spoke of the obstacles they face encouraging lawyers to apply for a judgeship. For instance, Cole said that there is a shortage of private lawyer applicants, which is likely related to the pay cut that an experienced law firm partner would see if she applied.

Chief Justice Berch added that she has reached out to former law students who are minority to encourage their application. But they have responded, “You don’t get it.” Many of them may be the first child in their family to attend college, let alone law school. Now that they have reached a pinnacle of law firm partnership, the sacrifice to become a judge may be just too great.

“We may put too much on their shoulders,” she said. “And that can be unfair.”

Here are some more photos from the event (they also may be found on the Arizona Attorney Magazine Facebook page.)

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