Governor Patrick and the Importance of a Diverse Judiciary

On October 14, we will honor Governor Deval Patrick with the 2014 BBA Beacon Award for his commitment to diversity on the bench.  It is important to reflect on the immensity and breadth of his impact, because his work certainly transcends the judicial branch.   For example, most executive-branch employees are now women, and more than a quarter are people of color.  During his time in office, there has been a 10% increase in the number of women holding managerial positions in the executive branch, and a 57% increase for racial minorities.

These changes are not happenstance; they were the direct result of a concerted effort by the Patrick Administration to overhaul the executive branch.  During his first month in office, Governor Patrick enacted Executive Order 478, declaring his commitment to diversity.  In 2011, he reaffirmed this commitment with Executive Order 526.  The orders spell out the means to achieving diversity through hiring.  Some of the highlights include:

  • Section 2 – declares “non-discrimination, diversity, and equal opportunity” as policies of the executive branch “in all aspects of state employment, programs, services, activities, and decisions.”  It charges each agency to consider the effects of its actions on achieving this policy.
  • Section 4 – calls for the protection and affirmative promotion of equal opportunity and diversity in all state, state-assisted, and state-regulated programs, activities, and services.
  • Section 10 – requires diversity training for current executive-branch employees at all levels and for all future new hires.

Similar to the executive branch, the judiciary has changed markedly over the past seven years as well.  It is currently at a high point of diversity.  Earlier this year, the Supreme Judicial Court’s first Chief Justice of color, Chief Justice Roderick Ireland, was replaced by the first Jewish Chief Justice, Ralph Gants.  In addition, with the appointment of Geraldine Hines, the first black woman to serve on the SJC, the state’s highest court has a majority of female justices for the first time.  Governor Patrick also appointed the first openly gay SJC justice, Barbara Lenk, and the first Asian-American justice, Fernande R.V. Duffly.

Diversity on the bench is important for a number of reasons.  A jury trial calls for a set of one’s peers gathered from the community, yet there is no such ideal in place for judges.  Thus, those who preside over cases may not be as representative of the population they serve.  As a recent Boston Globe article explored, this arrangement could be a source of bias, a troubling thought even if it is likely unintentional.  As one scholar contends, true impartiality requires judges from diverse backgrounds and viewpoints to avoid a situation where one perspective dominates.  Consider as well that people who come in contact with the judicial system may feel a lack of confidence in, or out of touch with, the court if the judges, clerks, attorneys, and others they encounter do not reflect the broader community outside the courthouse.

Achieving a diverse judiciary is a major problem across the U.S.  In most states, racial and gender diversity on the bench lags behind not only that of the state population, but also the diversity of the bar, suggesting possible bias in judicial selection.  In fact, a 2010 Brennan Center study, which advocated for improved judicial diversity, made grappling with implicit bias its top best-practice recommendation for judicial nominating committees.  The problem here is two-fold: first, bias limits the diversity of the bench, and second, in a state like ours where citizens can apply for judgeships, it could have a chilling effect on qualified minority candidates.  Governor Patrick has worked to make sure that this doesn’t happen in the Commonwealth.  His Executive Orders and judicial appointments have fulfilled a myriad of the Brennan Center study’s suggestions and made Massachusetts a leader of judicial diversity.

We are proud of the progress Massachusetts has made under Governor Patrick’s guidance.  We look forward to honoring him next week and hope that whoever follows him in office will build on his progress on diversity in both the judicial and executive branches.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association