A new report by the California LGBT Judicial Coalition puts into stark relief the fact that the state's judiciary needs more diversity. According to the report, "The New Frontier of LGBT Equality: The California State and Federal Judiciary," 45 of the state's 58 counties do not have any LGBT judges, and furthermore seven counties with over 20 judges do not have any LGBT judges. There has never been an out judge on the California Supreme Court. There is no out bisexual judge. There is one out transgender judge, who was elected five years ago. Right now, there are 39 out LGBT judges at the superior court level. Among state appeals courts, that number is even smaller: there are two currently, with a third expected to be confirmed this week.
Governor Jerry Brown makes the majority of appointments to the local bench and has a policy of not publicly identifying LGBT judges unless they are the first one. So, when Brown appointed Luis A. Lavin to associate justice of the Second District Court of Appeal, Division Three last month, the news release from the governor's office noted that Lavin is a gay man. But if the governor makes any other LGBT appointments to that division, the public wouldn't necessarily know. It seems to us that if an out LGBT person is appointed to the bench, it would be a mark of pride and the governor's office should include that information.
Broadly, the judiciary in the Golden State does not reflect its LGBT population. And just last week, when Brown appointed two judges in Alameda County, one of the most diverse counties in the state, they were both straight white men. In fact, since 2011, of the 17 appointments he has made in the county, 11, or 64.7 percent, have been straight white men. So it's not just an LGBT problem, it's also an issue for women and minority attorneys who aspire to become judges. But even by comparison, LGBTs are sorely lacking representation on the bench.
A pattern emerges in the profiles of the judges the governor has appointed. Many are former assistant district attorneys or public defenders; the rest tend to be attorneys from large law firms. Overwhelmingly, they tend to be straight white men. And that leads to the next point, that in order to have more diversity on the bench, these other offices and law firms must hire more women, people of color, and LGBTs. In order to do that, there must be a pool of qualified applicants, and that, in turn, leads to colleges admitting a more diverse student body �" especially law schools.
It's not easy to be appointed a state judge. The application process is grueling, and thorough. You must list every club or organization you've belonged to, possible controversial issues need to be included, as well as writing samples and references from colleagues. After all this, a committee screens and sends the qualified applicants on to the governor.
When the occasional judicial seat is on the ballot, a judicial campaign is costly and time-consuming. Money must be raised, endorsements sought, and campaign appearances are non-stop. Because judicial races are considered "down-ballot," it's more difficult to raise campaign contributions than for a mayor's race or state legislative office.
So yes, for qualified LGBTs to be considered, it takes a lot of hard work. But more of them need to apply �" and the judicial committee needs to send more applicants to the governor.
Federal level
The picture is even bleaker for federal judges. On the 9th U.S. Circuit Court of Appeals, which includes California and several other western states, there are no out LGBT judges. There are three gay or lesbian federal magistrate judges.
At the federal level, the president and Senate are largely responsible for making judicial appointments. In California, the state's two U.S. senators alternate in providing recommendations to the president, who then makes the nomination. Then it's up to the full Senate to confirm. Unfortunately, there is still stigma attached to LGBT people in the minds of some senators, especially Republicans who now control the chamber. We can remember Senate fights over gay and lesbian nominees to other administration jobs back in the 1990s, when Roberta Achtenberg was called "that damn lesbian" by Jesse Helms and Ambassador James Hormel was subjected to anti-gay rants.
But times are changing, or at least we like to think so. And it's time for both Senator Dianne Feinstein (D) and Barbara Boxer (D) to solicit qualified LGBT applicants for the federal bench. Local LGBT bar organizations, some of which contributed to this latest report, need to create a pipeline whereby qualified LGBT attorneys and state judges can be seriously considered for federal appointment. The bar groups need to recruit qualified candidates, assist them through the application process, and push the senators to recommend LGBTs to the president.
President Barack Obama has appointed �" and the Senate has confirmed �" six federal judges since 2009. One of those, Michael Fitzgerald, is in California, serving on the U.S. District Court for the Central District of California. That was three years ago.
Next year Californians will elect a new U.S. senator. In three years, we will elect a new governor. LGBT legal organizations need to brief candidates for these offices about the need to increase diversity of judges at the state and federal level in order for the judiciary to reflect today's society.