group is a better decision-making
group. Particular studies —of juries, for
example — show that heterogeneous juries do a better job by all measures than
homogenous juries do. I think the same
can be said for judicial bodies who, at
the appellate level, meet in groups, but
even at the trial court level, where it’s
just one judge per case. Those judges
still meet as an administrative body
and those meetings would benefit from
diversity as well.
Why is judicial diversity important?
Not only is it important for diversity of
thought and approach, but judges serve
as role models as well. Justice isn’t just
substance, it’s also appearance, and
people will more likely put faith in and
respect the outcomes — even if they
don’t like those outcomes — if they feel
that the bench more accurately reflects
What would you say to those who might
ask: “It’s 2014, we have an African-American president, and we will soon
have a bi-racial openly gay woman on
our state’s highest court. Why are we
still talking about diversity?”
The progress, at least on this Court,
that you are referencing, the two people
of color, happened within the last two-and-a-half years. This is a very new
thing. I look forward to the day when
diversity on the Court isn’t remarkable.
But unfortunately, it still is.
Diversity encourages different points
of view. If a court is diverse, does diversity work against consensus building when arriving at decisions that the
Court must make?
That’s an interesting question. In order
to get anything done on this Court, you
need five votes. So the only successful
strategy is one that builds consensus
and brings others to your view. Now it
may be that, with different opinions,
that process will take longer. But going
back to my earlier point, I still believe
the decisions themselves will be better.
Diversity of thought and new ideas will
come forward when you have different
perspectives. And that will make the
discussion we have a richer discussion
and, I hope, result in better outcomes.
Can you share any examples of how
having a diverse judiciary has made
a difference in your courtroom, as a
judge or as a practicing attorney?
Well, let me change your question a little bit and say a couple of things about
why I think it’s so important. Aside
from what we’ve already talked about,
we need people to see anyone as potentially a judge or justice and not have a
fixed idea of what a judge looks like.
We have heard a whole lot more in
recent years about implicit bias and we
know how that operates. And some anecdotal evidence of it is, when I was a
prosecutor for the City of Seattle, a victim of a crime that I was handling the
prosecution of would say to me, “Are
you really the prosecutor? You don’t
look like a prosecutor.” And frequently
I was mistaken for, on a good day, the
criminal defense lawyer. But more often
than not, I was mistaken for the interpreter, or the defendant, or a victim, or a
witness when I would arrive in court by
people who didn’t know who I was. This
means that we still have a long way to
go in changing our perception of who is
able to fill these roles.
By having diversity on the bench,
every day that a diverse judge does a
good job in his or her courtroom, we’re
saying that we belong, we are part of
society, we are also a part of the judicial class, the attorney class, and that’s
important not just for people of color
to see but for the rest of society to see
as well. Little by little, we’ll change
that perception, and get rid of the implicit bias that unfortunately persists.
I’ve had the same thing said to me as a
judge — that I don’t look like the judge,
either. I think it’s changing over time,
but it’s the same dynamic. Justice Yu
will help with that, because people will
come in and see her on the bench and
see how well-prepared she is, how well-
spoken she is, and how carefully she’ll
write her opinions. And we’ll come to
accept that as the norm.
As for how it might change the cases we accept for review, I think that is
hard to measure. As I said before, we
have to reach consensus of five before
we even accept a case to hear. So it’s
about our persuasive authority and
building that consensus with a different viewpoint added. For the most part,
sexual orientation, or race, or gender
won’t make a big difference in the
cases. Usually, it’s a legal argument,
and we are all able to make those just
the same. It may just be a difference in
communication style or an additional
facet we are interested in and want to
discuss. But mostly, we are lawyers, we
have been trained in the same way, and
we approach the issues with the same
dedication to the rule of law.
In an interview with Emily Bazelon for
the New York Times, Justice Ginsburg
was asked about the then-recent appointment of U.S. Supreme Court Justice Sonya Sotomayor. She said it felt
great that she wouldn’t have to be the
“lone woman” on the Court anymore.
She also said that she felt being the
lone woman on the Court was like being in law school in 1956, where she felt
that every time she answered a question, she was answering for her entire
sex. Do any of those feelings resonate
with you as the lone person of color on
the Court (until Judge Yu joins)?
At my first law firm, I was the first attorney of color who had been hired
there. When I worked at the U.S. Attorney’s Office, I was the only Latino
in the entire office. Until this month, I
was the only person of color serving on
the Court and the staff isn’t as diverse
as it could be either. I know what she’s
talking about, and how that feels, and
sometimes that’s an internal issue, and
no one else is thinking about it, but we
are ourselves. But I do think that with
more diverse voices, there’s more comfort for diverse voices, and people will
THIS IS A VERY NEW THING. I LOOK FORWARD TO THE DAY
WHEN DIVERSITY ON THE COURT ISN’T REMARKABLE.