Judicial Selection - An Asian American Perspective
Sandra R. Otaka
For Asian Americans, the choice between merit or appointive selection and the election of judges turns, in large part, on which system is more likely to give Asian American attorneys equal access to becoming judges. In many areas of the country, merit selection may offer Asians greater opportunity. Chicago, where the Asian American population runs between 4 and 5 percent, is a case in point. Several years ago, the Asian American Bar Association of the Greater Chicago Area took a position supporting merit selection. To understand why, a little local Asian American history is helpful.
Merit Selection v. Election
Ten years ago, Illinois had not one Asian American judge. No Asian American had ever been appointed by the Illinois Supreme Court, which is still true today. No Asian American had ever been elected to the bench. And, no Asian American had ever been selected by the circuit court judges as an associate judge. (In this quasi-merit selection process, the chief judge of the county creates a list of candidates. Then all the elected circuit court judges vote. The candidates with the most votes become associate judges. These judges never have to stand for election by the general public.) All this was true even though Illinois had the fourth largest Asian American population in the United States.
The Asian American Bar Association undertook a campaign to place an Asian American on the bench. We met with politicians of both parties—those influential in both the elective and associate judge selection process. We asked them to slate Asian Americans. We met with the Illinois Supreme Court justices from Cook County, the county where the largest number of Asian Americans resided and the county where the largest number of Asian American attorneys practiced. We met with the chief judge of the Circuit Court of Cook County. We presented judges and politicians with names of Asian American attorneys qualified to assume the bench. We wrote letters to the editors of the major Chicago newspapers and the Asian American community papers. We rallied community support.
Ultimately, after two years, we were successful. We got one. The chief judge of Cook County agreed that it was time to put an Asian American on the bench. He agreed to support one Asian American candidate in the next associate judge selection process. Lynne Kawamoto became the first Asian American judge in the history of Illinois. This very political "merit selection" process resulted in Kawamoto’s selection, not because she was eminently qualified, which was obvious then and now. She was selected in large part because of the attention brought to bear by the Asian American Bar Association.
Shortly after Kawamoto’s "merit" selection, the Board of the Asian American Bar Association was faced with the issue of whether or not to support merit selection of judges in Illinois. The discussion was serious and deliberate. We considered the fact that, through an alliance of African Americans, Hispanics, and Republicans, Cook County had been divided into sub-circuits, thus ensuring judicial districts where African Americans, Hispanics, and Republicans would be elected to the bench. We considered the fact that no Asian American sub-circuit was created. In fact, some of these sub-circuit boundaries run right through the heart of concentrated populations of Asian Americans, thus diluting Asian American voting strength. We considered the general electability of Asian Americans who lacked the political advantage of an Irish surname. We considered the fact that neither political party had ever seriously endorsed an Asian American candidate. We deliberated about whether merit selection was a better process for ensuring higher quality judges. And, we evaluated which process would be more likely to ensure equal access to the bench for Asian Americans. In the end, we chose to support merit selection.
What was the critical factor? I cannot speak for the others. For me, improving the quality of the judiciary was an important consideration. Equally important was identifying which system was more likely to ensure equal access to the bench for Asian Americans. The answer was clearly merit selection, not because it would be less political—some-thing unimaginable in Illinois. Rather, it was clear that, for now, Asian Americans would rarely be elected to the bench. Demographically speaking, our numbers are too small and our political muscle less than overwhelming. Some have said that this factor is irrelevant; the only factor we should have considered is which system will improve the quality of the judiciary. I disagree wholeheartedly. A diverse and representative bench enhances the judiciary and is, therefore, not only relevant but also essential. A diverse bench improves the quality of the judiciary.
Furthermore, I do not recall any occasion where boards of mainstream bar associations sat and deliberated about whether merit selection or elections would ensure that their membership had an equal opportunity to become judges. They do not have to worry—their members will become judges under either system. They are not struggling for proportional representation in the judiciary. Minority bar associations do not enjoy this privilege. They must consider which system will more likely provide their members with an equal chance at becoming judges.
Minorities on Merit Selection Committees
I do not mean to suggest that mainstream bar associations do not care about diversity in the judiciary. They do. But when these bar associations draw up merit selection proposals, rarely are there significant numbers of minority lawyers or minority bar associations, least of all Asians, at the table jointly drafting these proposals. So it is not surprising that typically proposed merit selection legislation goes to the floor of the legislature with no language providing for minority participation in the selection process. These proposals usually allow for a committee to be chosen by some elected officials or by supreme court justices. This committee then selects the candidates most qualified in their eyes to become judges.
Obviously, under merit selection, the selection committee plays a powerful role because only the candidates the commit-tee deems as most qualified can become judges. To have any chance of minority support, merit selection proposals must provide for at least proportional minority membership on the selection committee. This is not difficult. Recently, the Illinois State Bar Association announced it was proposing a constitutional amendment for merit retention of judges. In this merit retention proposal, judges deemed qualified to be retained by a merit selection committee would not have to stand for retention in the general election. Currently, all elected judges must stand before the electorate every six years and receive a 60 percent yes vote to retain their office. Originally the amendment allowed for a committee composed, in part, of lawyers who would be elected by the votes of all the attorneys in that judicial circuit. This committee would decide which judges deserved to be retained. There was no provision for minority membership on this committee. The likelihood of Asian Americans being elected was slim.
Upon request by the Asian American Bar Association, the Illinois State Bar Association (ISBA) agreed to modify its proposal to add requirements for minority membership. To reflect its serious commitment to diversity, the ISBA added, "To ensure racial diversity in any District or Circuit where African American, Asian American (sic) or Hispanic Americans exceed 3 percent of the population and are not represented on a Judicial Retention Commission, the Supreme Court shall appoint a lawyer-member from the listed racial group . . . so that that group has no less than one member." (Better language would have provided for "at least proportional representation.") It was intended that, at a minimum, minority attorneys would have proportional representation on the selection committee. And, to ensure that Asian Americans were included, the 3 percent cutoff was inserted. This is hardly the only means of guaranteeing a minority presence on merit selection committees.
Merit Selection Criteria
Some merit selection proposals go so far as to identify the criteria by which candidates will be evaluated. Rarely do the criteria include a requirement that the candidate demonstrate sensitivity to religious, ethnic, racial, and sexual lifestyle diversity. This criterion should be added. The traditional criterion— lack of bias—does not acknowledge clearly enough that judges today preside over courtrooms filled with diverse citizens. In addition to lacking bias, judicial candidates must appreciate and respect the value of that diversity. Drafters of merit selection proposals should not confuse the standard for removing a judge from the bench with the standard for selecting who will become judges. Clearly, those who do not value and respect diversity may be deemed less qualified to ascend the bench while those who are biased should not be deemed qualified at all.
Other Minority Groups
Even if mainstream bar associations invite minorities to the table, even if the proposals ensure minority membership on merit selection committees, no one should be surprised if minority bar associations decline to support merit selection. This is especially true where the majority population of a specific district allows for the election of minority judges. If Asian Americans or other minorities are becoming judges in significant numbers through election, why should they trust some risky prediction by main-stream bar associations’ studies that indicate minorities will fair well under merit selection?
In Chicago, Hispanics and African Americans have finally succeeded in electing minority judges because voting districts were redrawn into smaller sub-circuits. Is it any wonder then that African American and Hispanic Bar Associations here have declined to throw out the one, hard-fought means that finally grants them judgeships—the sub-circuit elections? Verbal assurances that minorities will do better under merit selection are not enough. Merit selection proposals must go further. Merit selection proposals must clearly state that the selection committee has a duty to ensure that selected candidates will reflect the diversity of the district or state.
No merit selection plan, however sensitively drafted, is absolutely guaranteed to garner the support of Asian American or other minority bar associations. But those plans can and should strive to ensure the full participation of minorities in the judiciary, regardless.
Sandra R. Otaka is a section chief with the Chicago office of the U.S. Environmental Protection Agency, immediate past chair of the Illinois Judicial Inquiry Board, and current board member of the Asian American Bar Association of the Greater Chicago Area.