The all-white Supreme Court UPDATE | Arkansas Blog

Thursday, December 3, 2009

The all-white Supreme Court UPDATE

Posted By on Thu, Dec 3, 2009 at 8:32 AM

Wendell Griffen, the former state Court of Appeals judge, will ask the Democratic Party's Faith Caucus, which is meeting this weekend, to endorse his statement of disappointment that Gov. Mike Beebe has failed in two opportunities to fill Supreme Court vacancies with a black appointee. (Instead, the governor first chose Elana Wills and, yesterday, Bill Bowen.) The full statement on the jump says in part:

We deeply regret that the racial composition of the Arkansas Supreme Court in 2010—a time when governmental entities and leaders in our State should be extolling and demonstrating the benefits of racial diversity and inclusion—will be what it was in 1910 during the heyday of Jim Crow segregation.

Matt Decample, the governor's spokesman, said the governor's office spoke to four potential black appointees. He said the job was offered to three of them, but all turned it down for various reasons. He said they were federal Magistrate Henry Jones, whose scheduled retirement apparently stood in the way of his accepting the appointment; Harold Evans, a lawyer at Willliams and Anderson, and Troy Price, a lawyer at Wright, Lindsey, Jennings.

UPDATE: Wendell Griffen responds. He says, in short, that there are more than three qualified black lawyers in Arkansas. His response follows his original statement.


Members of the Arkansas Democratic Party Faith Caucus:
I will offer the following statement for endorsement by our Caucus at our meeting on Saturday., and invite your comments or suggested revisions concerning it. 
“The Democratic Party of Arkansas believes in equal opportunity for all Arkansans to participate in government, including the judicial system.  As the Faith Caucus of our Party, we affirm the fundamental worth, dignity, and aspirations of all persons,  actively work to eliminate unfair barriers that discourage and hinder participation in government, and believe that a fair government is inclusive in fact, not merely in name.
The racial composition of the Arkansas Supreme Court is exclusively white.  No person of color has ever been elected to our state court of last resort.  Governor Pryor appointed the first person of color to the Court, Judge George Howard, Jr., in 1978.  Afterwards, Governors Clinton, Tucker, and Huckabee appointed persons of color to the Court when vacancies occurred, thereby ensuring at least the appearance of racial diversity at the highest level of our judiciary.  Aside from those interim appointments, the racial composition of the Arkansas Supreme Court has been exclusively white except when lawyers of color have occasionally served as Special Justices on individual appeals when members of the Court recuse themselves. 
Governor Beebe has been in office almost three years.  There have been two retirements from the Supreme Court during his tenure (Justice Tom Glaze and the impending retirement of Justice Annabelle Clinton Imber).  Governor Beebe’s appointments to the Court have left it all-white. 
We deeply regret that the racial composition of the Arkansas Supreme Court in 2010—a time when governmental entities and leaders in our State should be extolling and demonstrating the benefits of racial diversity and inclusion—will be what it was in 1910 during the heyday of Jim Crow segregation.”
I invite your editorial suggestions and comments, and welcome anyone who would like to be shown as a co-sponsor of this statement.  See you on Saturday.
Wendell Griffen 


The response by Governor Beebe's staff that it approached three black lawyers about accepting a year-long appointment to the Arkansas Supreme Court before making an appointment that retains the all-white racial composition of the Court ignores a glaring reality.  This is 2009, not 1959, and there are at least 100 black lawyers in Arkansas.  Plainly, surveying 3 members of a class of more than 100 persons does not provide a valid indicator about the inclinations of the class.  It speaks volumes about commitment to racial diversity, cultural competence, and inclusion. 
A culturally competent search process, assuming sincerity on the part of the Beebe administration about its commitment to racial diversity and inclusion, would have proceeded in a much different manner. 

First, staff would have made a competent assessment of the talent pool of black lawyers (thus identifying the class of "possible appointees").  Doing so would have identified more than 100 lawyers, not 3.  This is a basic step in undertaking a competent personnel search for a professional in any discipline, not merely the judiciary (identify the class of possible candidates).

Then the staff could have winnowed the pool size to the number of black lawyers who might have considered accepting the appointment (potential appointees).  That could have been done in various ways, such as by seeking input from the W. Harold Law Society (the Arkansas affiliate of the National Bar Association) in identifying the size of the potential appointees sub-class.

The sub-class of potential appointees could then have been further reduced by considering such factors as relevant legal experience, maturity, as well as the customary political considerations (region of the state, gender, age, etc.).  At that point, the staff would have identified the black lawyers who (a) it reasonably expected might be willing to consider being appointed and (b) who could be considered politically plausible for Governor Beebe to evaluate.  Notice that this step would have eliminated the three persons mentioned by the Beebe staffers, while allowing the process to continue with real prospect for success.

Finally, Governor Beebe (acting alone or with his advisors) could have identified which of the remaining politically plausible potential appointees that he was interested in considering should be confidentially approached (by interview or some other means).  He would then be able to make the final selection from that group. 

The foregoing process is what we should reasonably expect a public institution or private entity that is genuinely committed to racial diversity and inclusion to competently undertake.  It is a process used in various ways for many other executive and professional search efforts.   It is feasible (fiscally and organizationally), can be done with discretion, and is completely defensible.  Most importantly, it produces effective results for institutions and entities determined to build racially inclusive organizations.
Saying that "We couldn't find any qualified/willing black appointees to the Arkansas Supreme Court (or any other public post)" is an excuse for 1959, not 2009.  We should all act like we know better, even if Governor Beebe and his staff are unwilling to perform better.  "We couldn't find any ... " is admission of failed commitment and cultural incompetence.  Arkansas can and should do better.   


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