May 01, 2016

Does the Federal Article I Bench Reflect the Ethnicity of the Populations that They Serve? What If the Answer Is No?

By Judge Frank J. Bailey

The federal bankruptcy judge entered the courtroom to handle a motion session. First on the list was a routine motion to reopen a bankruptcy case so that the consumer debtor could add a creditor that he mistakenly left out of his recently closed case. Generally, such a motion would be unopposed and allowed as a matter of course. But here, a pro se creditor opposed the motion. After hearing at length from the creditor that he was disturbed that the debtor could get away with not paying his debts, the judge explained the law to the creditor in calm and simple terms. Then the judge allowed the motion, explaining that if the creditor felt he had a basis to object to the discharge of his claim, he would have a chance to do so later. Well, that is where the hearing went sideways. The creditor, an African American, said in a firm and loud voice that the judge was a racist and that “a black man cannot get a fair hearing in this court.” Although racism was hardly established in the handling of this motion (in fact, the dispute involved African Americans on both sides), the judge, upon reflection, realized that it may be daunting for a pro se African American man to enter a courtroom where the judge is white, the courtroom deputy is white, the electronic court records operator is white, the court officers are all white, and, if he took an appeal to the Bankruptcy Appellate Panel, none of the other bankruptcy judges in the circuit would be African American. Where judging relies on fairness, a perception that the process is unfair, even if wrong, is a serious assertion.

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