Black Lives Matter on the RI Supreme Court - Schoos
Geoff Schoos, MINDSETTER™
Black Lives Matter on the RI Supreme Court - Schoos
This is not to pass judgment on any applicant who may be referred to the governor for consideration and nomination. Rather, it is a call to diversify the court system as a whole so that it reflects the diversity of the society it serves.
It is easy for opponents of my position to ask what difference the race and ethnicity of a judge has on a given case. After all, the law is the law and the prime qualification of a judge should be the adherence to and application of the law without fear or favor.
GET THE LATEST BREAKING NEWS HERE -- SIGN UP FOR GOLOCAL FREE DAILY EBLASTLet respond to this argument this way: When I was a 1L in Contracts class, the professor abruptly stopped in the middle of the class and asked this question, “ Do you know what gets you lawyers in trouble?” Of course, we were thrilled that he called us “lawyers” and he had our undivided attention. He continued, “People think that the law is made of steel, rigid and unbending. It’s not. It’s made of putty to be shaped and molded within the parameters of the law.” At the time I thought he was nuts. But as time went by, I gained a new appreciation of his off-handed wisdom.
The simple truth is that it matters who is molding the putty, and nowhere does it matter more than on the bench.
There are two reasons I take this position. The first, as some may know, and about which I have written extensively, I ran a small legal services organization serving underserved people in the state. Too often our clients, who tended to be low-income, persons of color, or both were fearful of going to court. In their view, there was no connective tissue between their lives and the lives of those who would judge their cases. People spoke different languages and they lived different realities from those presiding over their hearing/trial. Look at it this way. Who, coming from a subordinate culture, would feel easy about being judged by someone from a dominant culture? The two parties have different values, essentially speak different languages, and live decidedly different realities.
In a perfect world, that should not make a difference, but it does. The courts are open to everyone, but that does not mean that they are receptive to all who enter. It is as though the judge and indigent party speak different languages and have little to no shared experiences. This basic reality impacts the outcomes and the fairness of those outcomes.
Too many of our fellow Rhode Islanders are relegated to the fringes of society. They feel at the mercy of institutions which, at best, treat them like fungible cogs in a labyrinthian machine. This not only strips their spirit but their humanity. This is what Robert Kennedy called the Violence of Institutions, about which I wrote that the courts are too often seen committing a silent violence against those whose humanity has been stripped away.
Diversifying the court system, especially at its highest level, would send a signal to those often ignored by the broader society that they too count.
My second reason for advocating diversifying the courts is even more important than the first, and that is the power of the judiciary to affect change in our society. As I have written, I have seen firsthand the power of the judiciary to advocate change, and its failure to do so. I will not relitigate my experiences here.
Rather, I’d use by example the promise of, and failure to deliver, an Access To Justice Commission in Rhode Island. I can say with complete certainty that as of August 25, 2020 at 11:52 a.m., and I doubt much has changed over the past few days. Rhode Island is one of the few states not to have such a Commission. In 2013, a grant from the ABA was given to Rhode Island for a study leading to the development of an Access To Justice Commission (ATJ). and That study was to be completed by 2014. By 2017, I wrote inquiring about its whereabouts. In several other publications, I continued to raise that question and ask once more, where is the ATJ?
I assert that the absence of an ATJ is a gross disservice to marginalized, underserved people. Unlike indigent defendants in a criminal matter, there is no “right” to an attorney in civil matters. There are numerous reasons why this is so but, as will no doubt surprise and amaze, I disagree with those reasons. I’ve written about this and it’s easy enough to find if you’re interested.
Suffice it to say, I see little difference between criminal and civil outcomes. Both are grounded in procedure, case law, and statute. Both are very formal and, I assert, both require specialized assistance for the novice indigent defendant appearing before a tribunal. And both constitute state action.
Let me be clear, people are not entitled to a specific outcome no matter their ethnicity, race, or income level. What they are entitled to is assistance to be seen and heard on as equal a footing as anyone else. And in the absence of a universal uncategorized right to an attorney in a civil matter, an ATJ can meet at least some of the needs for legal services, whether advice and counsel or full representation at trial.
So why don’t we have one? No doubt there are several reasons why not, but only one that truly counts: because those in power have not pushed for one. There is an institutional legal structure in Rhode Island, as I’m certain there is everywhere. The problem is that the component parts, in true Rhode Island fashion, are in close proximity to the other components. They come from the judiciary, the Bar, and usually, large law firms. They also come from the legislative and executive branches.
Over time there emerges a sameness about these component parts. Most of those involved have the same backgrounds economically, educationally, and experientially. This often results in a sameness of thought and action, a group think where the shared world view is threatened by change and sometimes innovation.
It matters little whether it is a manifestation of Robert Michels’ Iron Law of Oligarchy, Theodore Lowi’s Iron Law of Decadence, or Harold Lasswell’s theory of elites, or any other analytical construct. Each of us can pick our analytical poison to determine why Institutional Law behaves as it does.
Clearly, racial diversity in the courts will not automatically break this structural and intellectual judicial logjam. The present structure took years to develop and will take years to reform. Change comes hard.
But real diversity in the judiciary would be a good first step on that road to change.
