Edward Fitzpatrick

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Opportunity is knocking for legal diversity

01:00 AM EST on Tuesday, January 27, 2009

When I first heard that Illinois Gov. Rod R. Blagojevich had considered naming Oprah Winfrey to the Senate seat vacated by President Obama, my first thought was: Why not Montel?

Let me be the first to say Governor Carcieri should follow the example set by the embattled Illinois governor. Certainly, I don’t mean in terms of hair style. Or ethics. Or just about anything else, for that matter — except diversity. It appears Blagojevich took diversity into consideration when he made Roland W. Burris the only African-American in the U.S. Senate. Surely, he did it for some bizarre self-serving reason.

But Carcieri should take diversity into consideration as he nominates judges to the seven state court seats that are vacant or about to become vacant — and to the other judgeships likely to open up if he ends 3-percent annual pension hikes.

The Brennan Center for Justice at the New York University School of Law just released a report, Improving Judicial Diversity, that examines 10 states, including Rhode Island. The report, available at www.brennancenter.org, provides a timely reminder that we here in the smallest state have a big opportunity to add qualified minorities and women to our judiciary.

“The 2008 election opened a new chapter in the great American story,” Brennan Center Executive Director Michael Waldman wrote, noting we elected our first African-American president and a woman was the Republican vice presidential candidate. “Yet, in state after state, the diversity of judges lags far behind the general population. Too many states have all-white Supreme Court judicial benches, and women remain sorely underrepresented.”

While 21 percent of Rhode Island’s population is non-white, “it has no minority Supreme Court justices, and minorities hold only 2 of the 22 judgeships on the Superior Court,” which is the state’s main trial court, the report says.

The report quotes Rhode Island Judicial Nominating Commission Chairman Stephen J. Carlotti as saying, “We start with a threshold. Integrity and competence come first.”

Absolutely. But once that threshold is crossed, we should strive for a diverse bench because, as the report says, “a diversity of viewpoints will produce a more robust jurisprudence and because it will enhance the legitimacy of our system of justice in the eyes of an increasingly diverse public.” The report quotes the late U.S. Supreme Court Justice Lewis F. Powell Jr. as saying, “a member of a previously excluded group can bring insights to the court that the rest of its members lack.”

The good news is that law school populations are growing more diverse. “This pipeline of diverse new talent presents a real opportunity for state courts,” the report says.

The bad news is that minorities make up just 2 percent of the Rhode Island bar. “Where are your bright minorities and women going?” the report’s main author, Ciara Torres-Spelliscy, asked in an interview. “My educated guess is you are competing with the Boston legal market.”

Brown University attracts talented minorities to Rhode Island, Torres-Spelliscy said. So how do we keep those talents here? She said we need to start thinking like a “Top-20 law firm” and begin recruiting. Rather than just serving as background checkers, judicial nominating commissions can take an active role in “public education” and “strategic recruitment,” the report says. She talked about showing up at associations for women and minority lawyers to explain the application process and to convey the message that: “We want your best and brightest. Your state needs you.”

If that fails, I’m thinking we get Oprah involved.

efitzpat@projo.com

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