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President's Message Clyde E.Bailey, Sr. Remarks Before the NBA Louisiana Judicial Council February 28, 2004 Good afternoon! Mr. Chairman, permit me to first thank you for this invitation. Admittedly, when I received the first of your several urgent calls, I was certain that you wanted to invite me to join one of your fearsome foursomes in order to win an upcoming golf tournament, much like we did when you were so kind of enough to join one of mine at an NBA event a few years ago. That, of course, not being the case, I must say it is indeed an enormous pleasure and high honor to have this opportunity to share lunch and a few remarks with some of the most distinguished justices, of any race and ethnicity, in this country. Your collective and individual concern for advancing the judiciary is powerfully evident by this your 6th Annual Judicial Council Meeting in which you deliberate on crucial issues affecting the judicial system, the judiciary and, more importantly, our communities . Let me also thank the Eastman Kodak Company, my employer, who has steadfastly supported my involvement in the bar over the years, and more importantly my presidency. And, no support has been as important, valuable and necessary to me as that of my dear and beloved wife, Jean, a prominent international scholar and leader in academia in her own right as well as Professor and Director of Howard University's Center for Drug Abuse Research. Jean, by the way, is also a native of the great state of Louisiana, Parish of Natchitoches, graduate of Tulane's Graduate School and undergraduate school at Southern University where she was a Sweetheart of the Omega Psi Phi Fraternity. As you are aware, this year marks important Anniversaries of landmark civil rights developments including the 50th Anniversary of the Supreme Court decision in Brown v. Board of Education of Topeka and the 40th Anniversary of the 1964 Civil Rights Act. Of course, their companion legislation, the Voting Rights Act of 1965, was passed just a few months later in 1965. Together these civil rights developments, sparked by the courageous leadership of Dr. Martin Luther King, Jr., still provides a path forward for our society to one day realize equal rights for all citizens. We are all aware of the many advancements African Americans, like many of us, have made since and because of these developments. And perhaps some of us, like me for instance, would not be embarrassed to admit, in retrospect, that but for the civil rights laws of the 60s, I may not be standing here today before you as your 61st President. Notwithstanding, we have much more to do to realize both Dr. Kings dream of "Equal Justice" as well as the rights contemplated by the advancements in civil rights. It's no surprise that Dr. King would say it best in his "I have A Dream Speech:" . …"We can never be satisfied as long as the Negro is the victim of the unspeakable horrors of police brutality; we cannot be satisfied as long as the Negro's basic mobility is from a smaller ghetto to a larger one; we can not be satisfied as long the Negro in Mississippi cannot vote and a Negro in New York believes he has nothing for which to vote. No! No, we are not satisfied until justice rolls down like waters and righteousness like a mighty stream." (Excerpted from Dr. Martin Luther King's "I Have A Dream" speech delivered on Aug. 28, 1963 on the Lincoln Memorial, Washington, DC)" (Excerpted from Dr. Martin Luther King's "I Have A Dream" speech delivered on Aug. 28, 1963 on the Lincoln Memorial, Washington, DC). You see, Dr. King also had a vision that one day this nation of ours would have a Great Judiciary, Mr. Chairman, one that would accept the challenge of "not being satisfied" until all people in our society are accorded equal justice. Appropriate to your theme, "Great Challenges for A Great Judiciary" Justice A. Leon Higginbotham, Jr. was said to often quote the renowned abolitionist Frederick Douglass Bailey, AKA, Frederick Douglass, who asked perhaps the most probative and monumental question of his day, which still resonates today: Can American justice, American liberty, American civilization and American law be made to include and protect alike and forever all American citizens and the rights which have been granted to them by the fundamental laws of the land? Your theme raises the same question issue that was raised by Frederick Douglas, but in more contemporary and perhaps even more politically sanguine language of our day. With do respect, I would like to join this Judicial Council, Frederick Douglass and Dr. Martin Luther King in your respective propositions and add this query: What's the National Bar Association doing to ensure a Great Judiciary? In other words, what is the black legal community doing to ensure a Great judiciary? As you know, the diversity in the bar is an urgent issue for American Bar Association ("ABA") President, Dennis Archer (and past president of the National Bar Association) and, of course a perennial issue for the National Bar Association. According to the ABA's "Miles to Go 2000" Report, based on a total population of 60,000 judges, minorities comprised only 6% of all judges. Of this proportion, African Americans only comprise about 2.8% of the total population including federal, state, ALJ, substitute and part-time judges, etc.. Why is this so alarming? The answer is just 8 years earlier, in 1990, African Americans were 7 % of all judges . While this Judicial Council, in particular, does not need to be convinced or reminded that there is a compelling need for their service on the bench, I would simply like to satisfy the curious or perhaps even the novice among you, if there are any, who may not be particularly clear about this or who, only in the fullness of time, will come to understand and appreciate the depth of their own accomplishments. Here's a mighty compelling reason for diversity in the judiciary by Prof. Sherrilyn Ifill taken from her Article in the Washington and Lee University Law Review, 57 Wash & Lee L. Rev 405 (Sprg, 2000) entitled "Racial Diversity on the Bench: Beyond Role Models and Public Confidence: The lack of racial diversity on our nation's courts threatens both the quality and legitimacy of judicial decision-making. Traditional arguments emphasizing the "role model" value of black judges and the need for black judges to help promote "public confidence" in the justice system have turned our attention away from the most important justification for judicial diversity: Diversity on the bench can enrich judicial decision-making by including a variety of voices and perspectives in the deliberative process. . I think that this is indeed a correct assertion by Professor Ifill. My Presidential Goal Three for this bar year to "Increase the representation of African Americans in the Judiciary," in large measure, is motivated by my concern that there has historically been a dearth of voices in the judiciary that have resulted in the foreclosure on many of rights that should have been accorded African Americans and other ethnic minorities who encounter our criminal justice system. By instituting our judiciary initiative and, ultimately realizing its positive consequences, we can anticipate a new perspective from our judiciary, one, as Professor Ifill asserts, that will "enrich judicial decision-making by including a variety of voices and perspectives in the deliberative process." For instance, we contemplate that with a diverse judiciary and more enlightened and culturally sensitive policies and laws, for example drug policies, the historic harsh mandatory sentences generally disproportionately visited upon African Americans for non violent criminal drug offenses might now be replaced with a variety of therapeutic sentences of the type being proposed by our Drug Policy Reform Task Force headed by Judges Lynn Sherrod and Arthur Burnett. What other strategies have the National Bar undertaken to drive this idea of a Great Judiciary? We, think our position in the Judicial Independence debate is quite relevant and important. The rate of appointments and elections of judges of African American descent nationwide has woefully lagged other groups, particularly non-minority males. According to the ABA Directory of Minority Judges of the United States, African Americans constitute only 2.8 % of` all judges (including federal, state, and administrative judges). It is the view of some, if not most, NBA Judges that despite the controversy associated with concerns about judicial independence, the elections process, by far, favors African Americans who aspire to the judiciary. In part, because of this view, the National Bar Association has advocated for greater inclusion of African Americans in the judiciary as a means of ensuring fairness and credibility as well as independence and integrity in the legal system, particularly in the most vulnerable and underserved communities. We recognize that a single judicial selection process may not achieve the goals of diversity and inclusion in all communities. Thus, we have actively lobbied political leaders, political entities, bar associations and other influential parties whom we believe are primary drivers in the judicial selection process to incorporate inclusion and diversity as core elements in whatever judicial selection system is utilized to select its judges. Our position, as you may know, is at variance with that of the majority bar associations, i.e., the ABA and its affiliate State bars. The ABA generally favors the appointment process characterized by Nominations Committee as the appointive body or focal point of the process. The ABA's position is rooted in its belief that the appointment process does not compromise the impartiality of judges and that the so-called "merit selection" process produces the most qualified candidates. [But we all know the history of the "meritocracy process" and how it tends to systematically exclude Blacks.] . Ironically, it is for those very same reasons, and others, that the National Bar Association generally favors elections as a means of increasing diversity in the judiciary. According to the Honorable Patricia Banks, Past-chair of the NBAs Judicial Council, compelling reasons and advantages for retaining a judicial selection process characterized by elections are: 1) It produces greater diversity (citing Ill. and La.) 2) The judges are far more independent 3) The judges add a greater variety of political and social views and accountability. As a final point, here's some of what we, the National Bar Association, the voice of the Black legal community, are doing to overcome the challenges and to promote the goal of ensuring a Great Judiciary. CBC/NBA JUDICIAL TASK FORCE We have partnered with our friends in the Congressional Black Caucus and have formed a Joint Judicial Task Force which has two functions: First to recommend candidates to the Administration who we think will be a responsible voice upon which all people, particularly people of the underserved populations, can depend when fundamental legal issues of race, ethnicity, or gender may profoundly impact the designated population in the areas of advancement in business, education, civil rights, and the judicial arena; and, Second, the Task Force will provide guidance and input to the National Bar Association's newly developed Judicial Grading Process which will provide our friends in Congress with an impartial evaluations of the integrity, professional competence, and judicial temperament of prospective nominees for the judiciary from the black legal community. Of course ultimately, the Joint Judicial Task Force's goal is to support and encourage the selection of the best qualified persons for the federal judiciary. ADVOCACY IN ACTION: LETTERS TO PRESIDENT BUSH AND THE SENATE REGARDING JUDICIAL APPOINTMENTS Just about a week ago, we went on record opposing the recess appointment of Judge Charles Pickering by President Bush. We also sent a flurry of letters to the Senate Judiciary Committee members opposing judicial candidates like Janice Rogers Brown to the 12th circuit, Claude Allen to the 4th Circuit and Charles Pickering to the 5th circuit, who in our judgment, lacked the appropriate judicial temperament, experience or record that would indicate that their voice is potentially a desirable voice for the minority community. EMPOWERMENT THROUGH LAW AND JUSTICE TASK FORCE Conceived by my friend, Donald Temple, Esq. of Washington, DC, this initiative, along with its companion, "NBA 2000," relates to our immediate term challenge of preventing the disenfranchisement of millions of African American voters that we so tragically witnessed during the 2000 national election. Long term, these initiatives are focused on harnessing and collaborating resources supportive of our goals of increasing the number of African Americans in the Judiciary . NBA POLITICAL ACTION COMMITTEE We are resurrecting our Political Action Committee ("PAC") which we believe is a powerful vehicle to encourage our law makers to hear our voice on behalf of the black community. So when you receive your PAC pledge form from Past President Robert Harris, my PAC Chairman, please respond favorably to support our quest to drive change in our society, particularly for the citizens of our most underserved communities. PRESIDENTIAL GOAL THREE ADVISORY COMMITTEE Finally, my Blue Ribbon Panel, leading Goal Three, chaired by Judge Arthur Burnett, Senior Judge of the District of Columbia Superior Court and which include, the Honorable Revius O. Ortique, Jr., Ret. Justice, the Louisiana Supreme Court, and past President of the National Bar Association, has developed what we believe is a sustainable winning plan to enable our National Bar Association to realize its goal of achieving a Greater Judiciary that includes Monitoring judicial vacancies in the federal district courts and circuit courts of appeal as well as those vacancies occurring in the positions of United Magistrate Judge and United States Bankruptcy Judge. Also, Recommend the establishment of NBA State Committees on the Judiciary that will track vacancies and seek out and support viable candidates for vacant positions . In conclusion, I urge this great NBA Judicial Council to stay focused on the challenges confronting our judiciary and to remain vigilant, or as Dr. King stated, "not be satisfied" until all our citizens - from Bossier Parish to the North to Orleans Parish to the South; and, from Washington Parish to the East and DeSoto Parish to the West - are guaranteed and appreciate equality of justice, the hallmark of a "Great Judiciary." Thanks!