The American Bar Association’s Standing Committee on the Federal Judiciary has adopted criteria for judicial qualification, but those criteria do not formally acknowledge the value lived experiences bring to a fair and just judiciary. The ABA ranks all judicial nominees based on integrity, professional competence, and judicial temperament, with appellate nominees being evaluated on the additional criteria of exhibiting a high degree of legal scholarship, academic talent, analytical and writing abilities, and “overall excellence”.[i] While the committee does consider “whether opportunities for advancement in the profession for women, persons of color, and other minority groups were limited,” no real regard is given to non-legal work or other life experience when determining the qualifications of a candidate.
The conservative right chastised Justice Sonya Sotomayor for acknowledging the judicial value in having lived the life of a “wise Latina”,[ii] so a question softly volleyed to Justice Amy Coney Barrett during her Senate confirmation hearings about laundry seemed uncharacteristic of her conservative inquisitor. Justice Sotomayor demonstrated the value of her lived experiences early on in a drug possession case when she wrote that 1.3 grams of marijuana is equivalent to “about two or three marijuana cigarettes,” distinguishing such a small amount from the larger volumes of marijuana characteristic to commercial traffic.[iii]
I learned the value of lived experience firsthand when I became an administrative law judge at the Virginia Department of Alcoholic Beverage Control.[iv] During the job interview, I was asked not only about my skills and temperament as an adjudicator, but also about my experience with alcohol consumption. I was told that an understanding of drinking culture was essential to the position. When I was an undergrad, I was known to visit a bar or two. I also bartended in law school, so I certainly understood bar culture and its nuances.
It turned out that the bench of existing ALJs at the agency lacked extensive knowledge of and experience with drinking culture. This was having an impact on the agency’s ability to adequately adjudicate cases involving more innovative business practices. Even age-old drinking practices eluded some of my colleagues. One ALJ in particular, a well-educated lawyer with a distinguished career in civil service, happened to be a life-long teetotaler. This judge drank no alcohol at all, but was tasked with the full-time job of adjudicating alcohol-related cases.
One day, the judge was contemplating a case involving after-hours drinking in a restaurant. In Virginia, alcohol cannot be served or consumed after a certain time, necessitating a “last call” so the restaurant can comply with its regulatory obligation of disallowing sales or consumption after hours. In regard to one of these cases, my fellow ALJ asked why people would be in a restaurant after hours in the first place. The concept of “after-hours” drinking was foreign to them because they had never experienced the late-night, liquor-fueled inertia of not wanting the fun to stop just because the law said so. How do you explain the natural motivations of the determined imbiber to a life-long teetotaler?
Further, how do you explain the significant problem this natural phenomenon creates for the restauranteur who has succeeded in creating the fun, but is less able to wind it down by the required hour? A judge who understands the mindset of the determined imbiber is more likely to apply leeway under circumstances outside of the restauranteur’s control. At least my colleague had the self-awareness to acknowledge their lack of understanding of drinking culture.
Another part of having a judicial mindset that values lived experiences is understanding the limitations of one’s own experience. This is why every judge must not only acknowledge the existence of widespread implicit bias, but must understand its roots, modern day manifestations, and most importantly, the judge’s own role in perpetuating deep-seeded institutional racism. This last step is difficult, but is most crucial. True justice for the people cannot be delivered by those who refuse to even acknowledge that the underlying driver of racial injustice is white supremacy.
I first learned that I harbor an implicit bias against Black people in 2012 while completing coursework at the National Judicial College in Reno, Nevada. As part of a course on judicial bias, I took a computerized test created by Project Implicit, founded in 1998 by three scientists – Tony Greenwald, Mahzarin Banaji, and Brian Nosek.[v] The Race IAT is a computerized test measuring implicit racial bias and it is scarily accurate. Starring at the screen, I was stunned to silence once I got my results. The test indicated that I had an implicit racial bias - a preference for white people over Black people. A mixture of shame and confusion filled me. My first husband was Black and we’d only been married for a month by that time.
After reading Blindspot: Hidden Bias of Good People, written by Banaji and Greenwald, I began to understand the larger problem and kept reading. As many as 80% of white people in America harbor a hidden or implicit bias against Black people.[vi] Though I’m not alone in my bias, this is far from a comforting statistic. This means that white supremacist programming has captured a vast majority of the white American subconscious. Serious deprogramming is required, but such a tall order is made even more difficult when the Supreme Court of the United States is controlled by people who appear to ignore implicit racial bias and its devastating effects on the country.
Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Education Fund, in a recent interview with Slate’s Dahlia Lithwick, highlighted the fact that the Supreme Court now lacks a civil rights lawyer and therefore “we are missing that window, that perspective, that ability to speak with clarity about the challenges faced by people who live at the margin.”[vii]
Becoming aware of one’s own implicit biases, working to fully understand their roots, and learning how to actively resist allowing bias to influence decision-making is one of the most important lived experiences a judge can have. We must never forget that bias – racism really – is what has allowed a disproportionate number of Black and Brown people to become criminal defendants, ensnared from marginalized groups by the War on Drugs – what legal scholar Michelle Alexander calls the New Jim Crow in her eponymous book.
White judges – especially ones with lifetime appointments – have a duty to engage in racial bias self-discovery, as do male judges in the realm of gender bias. But bias training for a starkly white judiciary pales in comparison to the importance of actually elevating Black and Brown people to the bench, especially Black women. A void of diversity has created a public trust issue with the judiciary. This problem was recently discussed by Judge Noël Wise in an op-ed for The Atlantic. Judge Wise reminds us that “Americans are more prone to have confidence and trust in the [judiciary] if it includes judges who share their physical traits, experiences, or other aspects of their identity. … At its core, that trust is the only vaccine for anarchy.”[viii]
No matter their personal demographics, a judge who denies the existence of implicit bias willfully ignores the color blinders they choose not to remove. Those blinders are glaring to the rest of us – something which history will no doubt reflect.
[i] https://www.americanbar.org/content/dam/aba/administrative/government_affairs_office/backgrounder-9-21-2020.pdf
[ii] “A Latina Judge’s Voice”, Judge Sonya Sotomayor. https://www.nytimes.com/2009/05/15/us/politics/15judge.text.html
[iii] Moncrieffe v. Holder, 133 S. Ct. 1678 (2013).
[iv] Now the Virginia Alcoholic Beverage Control Authority.
[v] https://implicit.harvard.edu/implicit/takeatest.html
[vi] Isabel Wilkerson, Caste, p. 186.
[vii] https://slate.com/podcasts/amicus/2020/10/supreme-court-legitimacy-problem