Sent: Thursday, July 23, 2009 6:25 PM To: 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 issues. 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