THE WHITE STUFF: Sen. Ron Wyden’s recommendations are (left to right) Oregon Supreme Court Justice Tom Balmer, Multnomah County Circuit Judge Henry Kantor, Lane County Circuit Judge Karsten Rasmussen, corporate lawyer Michael Simon and federal public defender Steven Wax. (Ron Wyden photo: Kat Miller).
The OWLS are hooting at Sen. Ron Wyden.
Wyden ticked off the nearly 1,400 members of Oregon Women Lawyers as well as the state’s gay, lesbian and African-American legal eagles last week when he and fellow Oregon Democratic Sen. Jeff Merkley recommended five straight, white, male lawyers for two open federal judgeships.
Federal judgeships are generally regarded as the choicest judicial appointments in the legal profession because they carry lifetime tenure and pay $174,000 annually.
But in Oregon, as in many states, federal judgeships primarily go to straight, white men. Of Oregon’s 17 federal judgeships, according to Oregon State Bar figures, 3 1/2 slots are filled by women, two by minorities and none by self-identified sexual minorities. (The half-slot for women is Pendleton Judge Pat Sullivan, who works part-time.)
So while much of the judicial world was transfixed last week by the Senate’s Supreme Court confirmation hearings of Judge Sonia Sotomayor, a Latina, Wyden’s announcement that he would forward the names of five straight, white males was greeted in some Oregon legal circles like a skunk in church.
“We note there is not a single person of color, self-identified sexual minority or woman on this list,” wrote OWLS co-presidents Heather Van Meter and Gwyn McAlpine in a July 17 letter to Wyden and Merkley. “We are disappointed that, in this day and age, when Oregon’s population is over 50 percent female and nearly 20 percent minority, Oregon’s esteemed Senators could not or would not propose a single qualified woman or person of color for our District Court.”
Like the OWLS, Mark Johnson, who in 1999 became the first openly gay president of the Oregon State Bar, says he has nothing against any of the five finalists, nor does he question their qualifications. But he says Wyden missed an opportunity as the state’s senior senator responsible for this process to make the federal court more closely resemble the people it serves.
“People of color and other minority groups are disproportionately represented in the federal court system,” says Johnson, who applied for a judgeship. “They are all being sent to prison by privileged white men. That paradigm breeds disrespect for rule of law. You don’t serve a multicultural society by putting straight, white men in charge of everything.”
In fact, the two names Wyden will forward to President Obama after he interviews the five finalists in August guarantee the Oregon federal bench will become less diverse. That’s because one of the two judges who is retiring, Ancer Haggerty, is African-American. The other retiring judge is Garr King, a white man.
Kellie Johnson, a former president of the Oregon chapter of the National Bar Association, an association of African-American lawyers, says she is “disappointed” in Wyden’s list.
“Not only are we losing Judge Haggerty’s experience, but for a long time he has been much of the small minority representation on the bench,” Johnson says. “You don’t have to replace one African-American judge with another one, but you should keep diversity in mind.”
A deputy Multnomah County district attorney, Kellie Johnson says a straight, white bench is at odds with the notion that juries should reflect the common sense, experience and knowledge of the society they serve.
Van Meter, the OWLS co-president, says diversity influences collegial discussions as well.
“Trial court judges aren’t acting in a vacuum. They confer with colleagues,” she says. “If you have people in that colloquy who have different life experiences, they may ask different questions or know to ask different questions.”
Josh Kardon, Wyden’s chief of staff and the person responsible for overseeing the 13-member selection committee, says the concerns are understandable, but misplaced. He notes that six of Wyden’s nine appointees to the selection panel were either other OWLS members or minorities. Kardon also notes that three of Wyden’s four previous appointments to the federal bench were either women or minorities (including Haggerty). Kardon says he and the panel made sure diversity was a primary consideration but that the results reflect the choices of a diverse group.
“Sen. Wyden is extremely disappointed that more women, minority and GLBT attorneys failed to apply,” Kardon says. “And he stands ready to work with the Oregon Bar, OWLS and others to encourage more distinguished and diverse lawyers to consider these opportunities in the future.”
FACT: The five finalists are Oregon Supreme Court Justice Tom Balmer, Multnomah County Circuit Judge Henry Kantor, Lane County Circuit Judge Karsten Rasmussen, corporate lawyer Michael Simon and federal public defender Steven Wax.