Earlier this week, WW published
a story about the selection process for two open federal judgeships in Oregon. The selection committee, which was appointed by U.S. Sens. Ron Wyden and Jeff Merkley, chose five straight white males as finalists for the highly coveted $174,000-a-year positions.
Wyden chief of staff Josh Kardon, who oversaw the process for Oregon's senior senator, took strong exception to the criticism from some lawyers in the piece asking why there were no women or minorities among the five finalists. In a comment to a piece at Blue Oregon defending Wyden, Kardon penned a lengthy rebuttal
to those critics.
The other commenters at Blue Oregon
have largely backed Kardon and endorsed the selection of these five finalists while heaping scorn on those who questioned the outcome. However, the conversation elsewhere has included a higher level of skepticism.
For example, here is a letter to Kardon that was posted on the Oregon Women Lawyers list-serve yesterday:
Sent: Thursday, July 23, 2009 6:25 PM
Subject: [owlslistserve] Judicial Selection Process
For many of us who have practiced law for over 20 years, the frustration
of women being appointed to the bench and positions of authority remains
- even when we have no criticism of the individual qualified candidate
appointed. The below is cut and pasted from a letter that my father sent
to Josh Kardon today. I am extremely proud of my father for taking the
time to write today - not to diminish the candidates - but to reach into
historical data gathered by the OSB on gender and diversity issues that
reflect on the appointment process.
- Cynthia Fraser [Fraser is a lawyer at the Garvey Schubert Barer firm in Portland]
July 23, 2009
Josh Kardon, Chief of Staff
U.S. Senator Ron Wyden
1220 SW 3rd Avenue, Suite 585
Portland, Oregon 97204
RE: Recommendations for Federal Judge
Dear Mr. Kardon:
It is not my intent to in any way diminish the five candidates put
forward. Indeed, I have been engaged in litigation with Tom Balmer,
Michael Simon and Judge Karsten Rasmussen. Further, I know and respect
many of your select committee.
I have read your response on Steve Novick's Blue Oregon blog. Your
points are well stated and sincere. I write, however, because there is
a subtlety here that is perhaps lost and is for your consideration, as
well as that of Senator Wyden should you be inclined to pass on my
thoughts for further consideration.
What I say now I say from a perspective of having practiced for 50 years
before the Bar, serving as President of the Oregon State Bar from 1990 -
1991, but more germane here, Co-Chair with then Justice Susan P. Graber
of the Oregon Supreme Court, (now Judge of the Ninth Circuit Court of
Appeals) on the Oregon Supreme Court and State Bar Task Force on Gender
Fairness from 1994 to 1998. That task force traveled extensively
throughout the State of Oregon for hearings and spent an exhaustive
amount of time in delving deep into the issues of gender fairness both
through the access justice aspect, and issues related to women lawyers
and women judges. Prior to our committee being formed the Oregon
Supreme Court had a task force on racial/ethnic issues in the judicial
system. The findings of that task force and the problems experienced by
racial and ethnic minorities and their dealings with the justice system
did not conclude there were overt acts or disrespect or mistreatment.
Rather, that task force, as did the task force on gender fairness,
identified a pervasive institutionalized bias, a residue of beliefs that
linger in the subconscious of our society which perpetuate negative
stereotypes and effect people's action.
In 2000 the Board of Governors and the Supreme Court in the State of
Oregon approved an increase of the mandatory CLE requirements to nine
hours, to include diversity education. These are entitled Elimination
of Bias Credits. Former Chief Justice Ed Peterson in fact created a
course entitled Understanding Racism to cover cross cultural diversity
As well, the State Board of Governors has made access to justice its
highest priority in recent years and the implementation of diversity
requirements is one step toward achieving that goal.
Bar members have an important role to play in ensuring that the Bench
reflects the diversity of our community so that the legal system is
accessible to all Oregonians.
Having served on various selection committees from the Dean Search
Committee at the University of Oregon to several Magistrate Selection
Committees, the first item on our agenda always was to identify beyond
"volunteers" whether there were qualified people reflecting the
diversity of our community. It is respectfully suggested that what
should have driven the selection process was not the list of applicants
alone, but a determination as to whether there were qualified
individuals who "should have been on the final list" that was submitted
to the Senators.
In examining the glass ceiling related to gender fairness, our committee
determined that the very persuasive institutionalized bias mentioned
above, acts as a deterrent to qualified applicants who do not apply on
the premise that "what is the use" combined with the fear of rejection.
As President Obama and Judge Sonia Sotomayor have dominantly impressed
upon our consciousness that this can be overcome but only if we are
conscious of the need. Would it not now be appropriate for the Senators
to consider what the Oregon State Bar has asked its members to do, not
only to increase diversity for the Bar, but also on the bench.
A reaching past the committees conclusions for those exceptional diverse
individuals such as women and those of ethnic minorities should be
considered certainly if not this time, then next time. It is after all,
the Senators who nominate is it not?
ROBERT H. FRASER