May 01, 2016 Judicial Ethics

The Challenge of Maintaining Confidence in a Judiciary Lacking in Diversity

By Marla N. Greenstein

From its early beginnings, the Canons of Judicial Conduct have opened with the governing principle: “A judge shall uphold and promote the independence, integrity and impartiality.” And the corresponding obligation to “act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary” can provide a basis for discipline. But what if, by the essential personal attributes of the judge, such as gender, ethnic background, or sexual orientation, public confidence in the judiciary is diminished?

Actions alone, we know, are not enough to maintain the perception of an impartial judiciary and the corresponding confidence in the judiciary. Several articles in this issue connect the composition of the courts and juries with the confidence that participants in court proceedings have in the impartiality of the ultimate judicial decision. Judge Bailey notes effectively: “Where judging relies on fairness, a perception that the process is unfair, even if wrong, is a serious assertion.” While judges are aware that a diverse jury is a requirement of due process, a single judge cannot embody diversity. So what can a judge do to address the fundamental need to maintain confidence in the judiciary?

While the judge is the most prominent face of justice in the court system, a judge is only one face. Law clerks, bailiffs, court reporters, and other court employees can and should represent the diverse communities that they serve. Significantly too, judges can play a role in ensuring that jury pools are representative of the community. In “Assessing and Achieving Jury Pool Representativeness,” several specific goals are listed, and judges in administrative roles in their courts can assist in achieving them. Whether through community outreach to encourage jury service or ensuring that the court can support working parents through creative scheduling or other means, judges can work toward increasing diversity in the jurors called to the courthouse.

The Code of Judicial Conduct explicitly prohibits expressions of bias or prejudice by judges, court employees, lawyers, and other participants in the court process. Judges who are vigilant in addressing breaches of this standard will also increase confidence in a judiciary that itself may not be as diverse as the broader community. Rule 2.3, in prohibiting expressions of bias or prejudice against an enumerated list of personal attributes such as race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, and political affiliation, includes diversity into the Code of Judicial Conduct. By merely reading the Code, awareness of the diverse population that the court serves increases.

So too, judges who have the power to appoint other judicial officials can impact diversity on the bench. Awareness of the lack of diversity in federal bankruptcy courts is a first step to increasing diversity. The Bailey article illuminates the sharp differences between the makeup of the bankruptcy courts and the population those courts serve. Awareness of the need for diversity is the first step to gaining diversity—but only the first step. To meet their obligation to maintain confidence in the judiciary, judges must do more. This issue of The Judges’ Journal provides a few pathways to achieve that goal.

Marla N. Greenstein

Marla N. Greenstein is Executive Director of the Alaska Commission on Judicial Conduct, a position she has held since 1989.  Ms. Greenstein served from 1996-97 as Chair of the ABA Judicial Division Lawyers Conference.  Ms. Greenstein also serves as Secretary of the Board of the Association of Judicial Disciplinary Counsel. She is a graduate of Loyola University of Chicago School of Law and holds an undergraduate degree in American Government and Philosophy from Georgetown University.