Issue:  Vol. 48 / No. 12 / 22 March 2018

Report highlights lack
of LGBT CA judges


Alameda County Superior Court Judge Victoria Kolakowski
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A new report is highlighting a fact often overlooked about the state's judiciary – LGBT judges are largely missing from the state and federal bench in California.

There is only one gay judge out of 62 federal district court judges in California and just three openly LGBT federal magistrate judges among the 65 in the state.

Of the state's 58 counties, 45 have no self-identified LGBT judges on the local state superior court.

"In other words, the LGBT community is not represented in the judiciary in 78 percent of the counties in California," states the "first in the nation survey" released July 14 by the California LGBT Bar Coalition.

Representatives of LGBT bar associations in the Bay Area, Los Angeles, San Diego, Orange County, and Sacramento compiled the report, written in the style of a law journal article, in an effort to draw far more public scrutiny to the need to appoint or elect LGBT judges in the Golden State.

"I think a lot of people do not know, or they have a false impression there is LGBT diversity on the bench. There is not," said attorney Denise Bergin, who co-chairs the Bay Area Lawyers for Individual Freedom's judiciary committee.

Bergin, who did not write the report, added, "I think there has been a lack of energy around this from the LGBT community, and that is something that needs to change."

Titled "The New Frontier of LGBT Equality: The California State and Federal Judiciary," the 15-page document concludes that "LGBTs are just treading water" when it comes to being appointed or elected to serve on state and federal courts in the state.

The report highlights the fact there has never been an out justice on the California Supreme Court and that the number of LGBT state judges remained the same at 41 between 2013 and 2014, the most recent year for which there is data on the demographic makeup of the state bench.

As the report notes, "even with recent appointments and election victories, the percentage of openly LGBT sitting California judges and justices still remains at a disappointing 2.4 percent."

"The report describes a real problem with non-representation on the bench of LGBT people, particularly the B and T part of that. Bisexual and transgender people are not represented," said Alameda County Superior Court Judge Victoria Kolakowski, the sole transgender judge in the state who won election to the bench in 2010.

Chris Burdick, an out lesbian who is the Santa Clara County Bar Association's executive director and general counsel, said she welcomes the LGBT legal groups' effort to highlight the issue. But she questioned some of the report's conclusions.

"I think it is good to get this information out so that people understand what progress has been made and what progress still needs to be made," Burdick said. "I think it may be just a tad misleading. The numbers are accurate but the overall conclusion falls just a little short. It is true, historically, the number of lesbian, gay, bisexual, and transgender attorneys on the bench has been woeful. But there has been, in the last five years, significant effort to increase those numbers."

The Bay Area Reporter has been reporting on the lack of LGBT judges on the state bench since 2011, when California judges were first asked if they identify as LGBT. State law requires the California Administrative Office of the Courts to annually report on the diversity of the judiciary, including on the sexual orientation and gender identity makeup of the state bench.

Responding to the questionnaire is entirely voluntary, and the identities of the lesbian, gay, and transgender judges are not disclosed. As the B.A.R. noted in a March story about the data released earlier this year, there were zero bisexual judges among the 1,655 jurists serving as of December 31, 2014. It marked the fourth year in a row that bi justices were missing from the demographic data.

In a news release about its report on the state's judicial makeup, the California LGBT Bar Coalition stated, "among the remaining frontiers for full LGBT equality is equal representation in the state and federal judiciary. It is both ironic and sad that the very judicial institutions that we rely upon for our equality are themselves so unequal and un-inclusive of LGBT Americans.

The report is obliquely critical of Governor Jerry Brown, who appoints legal professionals to fill vacancies on the state bench. Of the 237 judges Brown named to the bench between 2012 and 2014, just 10 were LGBT, according to the report, on par with the number of LGBT judges who left the judiciary.

Asked about the report by the B.A.R. , Brown's office noted his appointments of the first lesbian and gay judges to state appellate courts – on Thursday Luis A. Lavin is expected to be confirmed as the first out justice on the Second District Court of Appeal in southern California.

Brown's office also pointed out that based on the state judicial data from 2011 to 2014, the percentage of LGBT judicial appointees (4.2 percent) has been about 35 percent higher than the percentage of LGBT applicants (3.1 percent).

"As the report notes, this administration has made many qualified and diverse appointments," Gareth Lacy, Brown's deputy press secretary, told the B.A.R. in an emailed response. "The governor is committed to appointing qualified judges that reflect the diversity of our state."

Yet last Thursday Brown appointed 19 people to judicial seats on superior courts across the state, none of whom were identified as LGBT. Asked about it, Bergin said the problem does not lie solely with the administration's judicial selection process.

"I think it is a lost opportunity but it is not one surprising to me. Part of the problem we identified in the report is a lack of a pipeline for LGBT lawyers to be appointed to the bench," said Bergin, a lesbian and partner at Oakland law firm Weaver Austin Villeneuve & Sampson, LLP. "Without that pipeline it is hard for us to expect that suddenly there will be a significant number of LGBT people appointed."

Geoff Kors, an attorney and former executive director of Equality California, the statewide LGBT advocacy group, agreed. Unless LGBT lawyers are willing to seek out judicial seats, and be open about their sexual orientation or gender identity, the makeup of the state's judicial bench will remain a concern.

"What matters is how we move this forward. Having regional LGBT bar associations ban together to form a California LGBT bar organization is going to be very helpful," said Kors, who is gay and now works for the National Center for Lesbian Rights.

The report posits that the lack of a pipeline of qualified candidates is also responsible for the dearth of LGBT people on the federal bench. For instance, of the 29 judges on the 9th U.S. Circuit Court of Appeals, which covers California and eight other western states, none are LGBT.

Many federal judges served on state courts before coming to the attention of California's two U.S. senators, who vet and endorse candidates, and the White House, which makes appointments to vacancies on the federal bench that must then be confirmed by the Senate.

"Politics is inherent in the process," notes the report, which includes a quote from Candace Carroll, who chairs Senator Barbara Boxer's Judicial Appointments Committee for the Southern District of California.

Noting there are fewer federal district court seats compared to the state court system, "an effort is made to appoint to federal seats the best of the best," Carroll is quoted as saying. "That means the LGBT community has to make sure there are many highly-qualified LGBT candidates available and applying from private practice, from the U.S. Attorneys' offices, from the magistrates' bench, from the state court bench, and so on."

The selection process itself is part of the problem, argued Kolakowski. Effort needs to be made to look for judicial candidates outside of the larger law firms and district attorney's offices throughout the state, she said, in order to increase the pool of LGBT attorneys eligible for appointments.

"Most of those places are not hiring trans people or LGBT people in general ... And so it is hard when you don't have access to the same positions to get to know the people who are making the decisions at the top level, who make the recommendations to the governor," Kolakowski said. "If you aren't known to those people and don't know how to push your name forward then we are not going to have our people get there. It doesn't mean they are trying to exclude us. It means these are competitive positions and they may prefer other people sometimes, people like themselves."

A sustained commitment by the LGBT legal groups to vet potential judge candidates and advocate for their appointment to the bench will be beneficial, said Kors. And having the issue presented in such stark terms in the report will also help, he added.

"I think one of the main things it highlights is the vast majority of counties in the state where there are no LGBT judges," said Kors. "Not a single LGBT judge in so many places really demonstrates this is a problem that the governor's office needs to address."

LGBT lawyers and judges also have a key role to play, said Bergin, by coming out of the closet and being role models for others in the profession.

"We hope this is a wake up call and inspires people to think about serving on the bench," she said. "We hope it maybe encourages people who are not out on the bench to come out, even publicly, not just in a report."

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