March 01, 2017

From the Bench: Diversity in the Law

Hon. Joseph A. Greenaway Jr.

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The following is the welcome address given by Judge Greenaway Jr. to first-year law students at Cardozo Law School on August 24, 2016.

Thank you for that kind introduction. I always listen to my bio with both wonderment and embarrassment. First, the wonderment: what professional good fortune I have had with so many exciting opportunities and great experiences. And second, I always wish that the introduction was shorter. I am quite certain you would rather hear what I have to say than hear my biography.

I am so happy to be here speaking to the class of 2019 as you embark on the journey of a lifetime. Whether you realize it or not, you will be learning a new language and rules, rules, and more rules. And then having learned the rules you will learn that there are myriad exceptions to all the rules you have just mastered. Intellectually, it will be overwhelming at times—for me, it was the entire first year—but hopefully it will, at least some of the time, be fun.

To each of you, I extend a hearty welcome and congratulations; there are so many who would love to be sitting in your seat. When Dean Leslie asked me to speak to your class, I was flattered. It is both a serious obligation and an honor to stand before you. Admittedly, I stand before you with some trepidation. The open-endedness of the assignment—“Judge, anything you want to say about diversity and inclusion”—is daunting.

 

The history buff in me was immediately excited. Let me tell you about the speech I was going to give. Diversity is thought by millennials and generation Xers to be a concept of fairly recent vintage. In fact, particularly in our profession, we have embraced notions of diversity from the beginning of the Republic. Issues of both diversity of thought and religion were integral to the discussions at the Constitutional Convention. Federalists and Anti-Federalists were the main factions in the summer of 1787. Of course, religious diversity was then, and remains today, a cornerstone of our political landscape.

At the turn of the 20th century, a different focus came to the fore in our profession. The influx of immigrants from Europe meant that slowly but surely the face and complexion of the legal profession was changing. With the advent of Wall Street firms, a more focused and pronounced practice of exclusion meant that stratification within the ranks of lawyers created both barriers and opportunities. Barriers in unwritten practices to exclude either lawyer or client based not only on who you were, but also on where you came from. On the other hand, opportunities to service new, less well-heeled segments of the business world took hold and law firms were formed with new and distinct surnames.

In the middle of the 20th century, widespread social protest gave voice to groups in our society that only had been seen but not yet heard. Young people, women, blacks, and other people of color demanded that our profession and our nation live up to the moral and legal imperative first pronounced in the Declaration of Independence—that we hold these truths to be self-evident that all men are created equal. That starting point would eventually lead me to focus on the strides that have been made by women in the profession, capped recently with the achievement of perhaps the most famous female attorney in the history of our country—presidential candidate Hillary Clinton.

Now, if you are a history or political science buff, that might be a great talk. But if you want to be a good judge, you have to be willing to be persuaded. So I ran my idea by my significant other, who happens to be an academic and a research scientist, and her reaction was polite but firm and it was negative. No historical perspective. No looking back at the halcyon days of yore. She was persuasive: “This talk doesn’t say anything about you. The first-year class is about to embark on a journey, an adventure. They want to be both informed and inspired. Share with them something about your experience.”

My Experience

So I went back to the drawing board, asked myself what about my experience I could offer to say something both cogent and meaningful about diversity and inclusion.

I love old movies. Long time ago, before VCRs, DVDs, and DVR, you had to read the TV Guide and set your alarm clock to see old movies. One of my favorites and one that I actually first saw as a teenager at 2:00 in the morning is It’s a Wonderful Life. It is indeed a magical story in which the main character, George Bailey, disgusted with his otherwise boring and mundane life in a small town following World War II, contemplates suicide. An angel intervenes and shows him the profound effect he has had on his family and so many people in his community. He literally learns what the world would be like had he never been born.

I will not be so dramatic. My objective is not to examine what the world would look like without Joe Greenaway. What our profession would look like without diversity is clear and uninteresting. But I do want to share with you some of my experiences that make the case for keeping issues of diversity and inclusion at the forefront in decision making. The concept and its implications of diversity are most keenly both felt and influenced by decision makers. If you are a worker, you may have chances to implement change but only a fraction of the opportunities that a decision maker does.

It makes sense to first say what I mean by “diversity.” What is diversity and what work does it do? My definition of diversity is fairly simple: It is broadening the spectrum of the possible. Whether we are talking about women, people of color, religious or ethnic minorities, or the economically challenged, diversity requires us to challenge the way we look at our assumptions and stereotypes.

In 1916, if you were sitting in the first-year law school class orientation, your classmates were white men for a myriad of reasons. Among those reasons was one critical one: Within the profession and more generally in the society, we simply did not envision people other than white men occupying positions of authority and respect.

That is not true today. I dare say if I asked you all to turn to your right and then turn to your left, and then asked if you see a woman or a person of color, you would each say yes. But what I mean by diversity in action is more than that. I have the honor of serving on the Board of Trustees of Columbia University. One of my fellow board members, Ben Horowitz, a Silicon Valley titan, recently talked to me about filling a position in his company. The person recruiting for the opening understood the job responsibilities but was only bringing in white males to interview. Ben asked him what might sound like a simple question—what are the characteristics and skills of the person we want to fill the position?

The manager easily listed all of the qualities necessary for the position. Ben asked him, “Are those qualities unique to white males?” The manager did not follow immediately. He responded, “So, you want me to hire a black guy?” Ben’s response was, “No, I want you to think about the people who possess this skill set and then hire the best person.” Who ultimately got the job is not important. What is important is that the selection process changed because Ben challenged the manager to think about the process differently, which increased the spectrum of possible candidates. The person who got the job was going to be from among the large group of qualified candidates. For me, diversity is really about changing perspectives. You are all familiar with Justice Ginsburg. In the late 1950s, she graduated from Columbia Law School near the top of her class, she was an editor on the law review, and she landed a district court clerkship only because the dean pleaded with an old friend to hire her. Less than 20 years later, women were routinely selected as clerks at every level of the judiciary. All that changed was the perspective of the federal judges doing the hiring.

The only way this diversity process is affected is when the decision maker affects it. And decision makers come from all strata of society. One thing is certain: Lawyers are decision makers. Each of you will affect the process one day. How you do so is up to you.

As for me, I just want to tell you about a few of my experiences and let you come to your own conclusions regarding what role thinking about diversity played in my decision making.

As an in-house counsel at the health care conglomerate, Johnson & Johnson, I learned a lot about diversity in the corporate environment. In the business world, everyone tries to distinguish himself or herself from others to earn business; the question in that context when hiring lawyers is whether a lawyer is so unique that no one else can do the job. If the answer to that question is no, who should be hired? I was proud to be part of an environment where the primary consideration in selecting outside counsel was identifying the skill set necessary for the case. For one example, I had a case in San Angelo, Texas, for which my boss told me to hire whomever I had confidence in. I looked at what expertise we needed, and the lawyer we hired was an African American practicing at a large Texas firm. Johnson & Johnson received first-rate representation, but we lost the case. My boss did not focus on the fact that the lawyer was black but instead on what we could learn from the loss. Going forward the loss created no impediment to hiring outside counsel from a diverse perspective whatsoever; the lesson I learned was that we must deliver the desired result.

I have been a federal judge for 20 years. People often ask me whether being a judge was always an aspiration I had. It was not. Part of the reason for my answer is that you cannot see what you cannot imagine. When I attended Harvard Law School, all of the walls in in every major building were decorated with magnificent paintings of jurists and other leading figures in the bar. None of these portraits looked like me. It was not exactly that this experience intimidated me but simply that it influenced my ideas about what was possible.

Fifteen years later, when I received a phone call from Senator Lautenberg’s search committee asking whether I had an interest in becoming a federal judge, I was flabbergasted. It simply was not something that I had envisioned as possible. It was not that I believed I was not qualified for the job, but up to that point there was only one judge of color to serve on the federal judiciary in New Jersey. I have no idea if diversity was a factor in my selection or what specific role it played with the senators and the president. But if it did factor into the decision making, what is wrong with that?

I stand humbly before you to say dream away. Let your imagination be the only impediment to your ambition. This is what broadens the spectrum of the possible.

Affecting the Legal Environment

I do ask myself periodically how have I affected the legal environment I have occupied?

I am the sole decision maker in hiring my law clerks and interns. I know from experience that a broad array of candidates can do excellent work, so I need not solely consider the default law clerk candidate—a white male from a top law school who is on law review. My intent is not to exclude the default candidate, but to point out that by broadening the spectrum of possibilities, I have expanded my opportunity. In 20 years, I have hired 60 law clerks; I have hired over 40 women and over 30 minorities. I do not make those numbers plain to ask for any particular recognition, but instead to show you that I have been able to build an excellent reputation while keeping diversity at the top of my list of priorities in selection.

The same is true regarding my interactions with my colleagues and the public during my tenure on the bench. I was a federal district judge for 13½ years. In that time, I sentenced over one thousand defendants, both individuals and corporations. I am confident that my background and experience influenced my sentencing of defendants. And I am equally confident that truth does not mean that justice was not done or that any defendant eluded justice.

As it relates to my colleagues, I believe we all benefit from all kinds of diversity as it relates to our decision making. Several years ago, I sat on a three-judge panel with two of my colleagues who happen to be white men. The case involved the review of a denial of a suppression motion. The defendants alleged that there had been incomplete information related from a store detective at Bloomingdale’s to local police such that the only way for the police to have reasonable suspicion to search the subject’s car was to assume that the black defendants were conspiring despite any tangible evidence to support that proposition. Despite the lack of concrete information, the police stopped the car and searched it. They found incriminating evidence. My colleagues acknowledged the obvious problems with the admission of the evidence. In fact, they admitted it was a very close call. In conference, they specifically asked me whether in my opinion the police had acted in the way they did because the defendants were black. My answer was yes. I am proud of my colleagues for their candor. I do not believe that the same conversation would have occurred without a person of color on the panel. My presence gave my colleagues a different and more personal perspective in trying to resolve a difficult case.

Admittedly, the kind of exchange I have just described is not a regular occurrence. That does not mean, however, that in my colleagues’ decision making, asking for another colleague’s perspective is not considered when appropriate.

My last example of the influence of diversity on decision making involves two American heroes and giants on the bench—Thurgood Marshall and Sandra Day O’Connor. On the passing of Justice Marshall, many of his colleagues and friends wrote stirring tributes to him. Justice O’Connor’s tribute, entitled “The Influence of a Raconteur,” appeared in the Stanford Law Review. In that piece, Justice O’Connor described how Justice Marshall’s presence on the Supreme Court touched his fellow justices. She wrote:

Although all of us come to the Court with our own personal histories and experiences, Justice Marshall brought a special perspective. His was the eye of a lawyer who saw the deepest wounds in the social fabric and used law to help heal them. His was the ear of a counselor who understood the vulnerabilities of the accused and established safeguards for their protection. His was the mouth of a man who knew the anguish of the silenced and gave them a voice.

At oral arguments and conference meetings, in opinions and dissents, Justice Marshall imparted not only his legal acumen but also his life experiences, constantly pushing and prodding us to respond not only to the persuasiveness of legal argument but also to the power of moral truth.

Although I was continually inspired by his historic achievements, I have perhaps been most personally affected by Justice Marshall as raconteur. It was rare during our conference deliberations that he would not share an anecdote, a joke or a story; yet, in my ten years on the bench with him, I cannot recall ever hearing the same “TM” story twice. In my early months as the junior Justice, I looked forward to these tales as welcome diversions from the heavy, often troublesome, task of deciding the complex legal issues before us. But over time, as I heard more clearly what Justice Marshall was saying, I realized that behind most of the anecdotes was a relevant legal point.

Justice O’Connor closed her tribute with the following:

As I continue on the bench, a few seats down from where he once sat, I think often of Justice Marshall. . . . Occasionally, at Conference meetings, I still catch myself looking expectantly for his raised brow and his twinkling eye, hoping to hear, just once more, another story that would, by and by, perhaps change the way I see the world.

I share Justice O’Connor’s words to make crystal clear to you the practical way in which diversity influences decision making. Justice O’Connor had the most weighty of jobs—the swing vote on the Supreme Court of the United States. An historic figure in her own right, she plainly benefited, years later, from the courage of President Johnson, who saw the opportunities, despite great opposition, in making the Supreme Court more accurately reflect our social fabric with Justice Marshall’s appointment.

I share these thoughts with you today not to defend or promote diversity. The benefits of diversity are manifest and need not, in my view, be justified. I wanted instead to show you diversity at work. Does diversity make our profession measurably better? Are we beholden to do everything we can to make our profession reflect the diverse world in which we live? These are among the questions you will invariably have to answer. Our country is changing. By 2050, we will be a nation whose citizenry will reflect a majority of persons of color. As a profession, we can either continue to embrace diversity or turn a blind eye to it. How you, as future leaders, address diversity will determine not only your future but also the future of our profession.

Hon. Joseph A. Greenaway Jr.

The author is an associate editor of Litigation, and sits on the Third Circuit Court of Appeals, Newark, New Jersey.