Missouri Chief Justice George W. Draper III gave a stinging rebuke to Missouri lawyers in his address at the joint annual meeting of The Missouri Bar and the Judicial Conference of Missouri on September 19. This is edited from his remarks.
After a decade in the St. Louis city circuit attorney’s office, I worked my way through the judiciary. After 25 years on the bench, I have come to appreciate the Missouri Supreme Court in its broadest sense, as an institution existing well beyond the seven of us who may sit at any given time.
I consider our court conservative in its jurisprudence, yet proactive in its policies. My predecessors in this position have led the court in some significant accomplishments – building electronic filing and case management systems from the ground up; leading the way with the Uniform Bar Exam; and making meaningful and significant changes to our municipal, juvenile, criminal and civil justice systems.
Additionally, our treatment courts are on the front lines, helping us fight the opioid crisis in our state by adopting treatment court standards.
Most significant and timely is our racial and ethnic fairness commission, which is taking a holistic view of our entire profession and recommending a myriad of improvements.
Supporting that work, my colleagues at the Supreme Court and I are doing what we can to help educate lawyers and judges about the harm our biases can have on our profession. The entire judiciary – all judges and all employees – now have undergone implicit bias training. And, effective in July, ethics rules for attorneys and judges expanded protections against bias, prejudice and harassment.
Furthermore, beginning with the current reporting year, all judges and lawyers must have one hour of “elimination of bias” training among their 15 hours of required continuing legal education.
Some have questioned the policy behind this new Continuing Legal Education, but let me tell you, this is one imperative in which we are way behind.
The corporate world long ago recognized the need for diversity, inclusion, and a real understanding of the racial bias that divides and threatens community, industry, democracy, and profit. Major law firms, national and local, are requiring anti-bias, anti-racism (or ABAR) training for their attorneys and all their employees. Their clients are demanding truly diverse representation, and the firms are working to improve their cultures so their minority attorneys can thrive.
The need to address and remedy bias is at the nation’s forefront. Just last month, The New York Times announced its 1619 Project, named for the year when the first enslaved Africans were brought to Virginia and sold to the colonists. While not an anniversary to be celebrated, the project aims to reframe our nation’s 400-year history since then in the context of the consequences of slavery and the light of contributions of black Americans to our society. But lest we forget, the history of our country includes the maltreatment of other minority groups as well.
Without addressing bias, we perpetuate the founders’ original sin, which directly led to the Freedom Suits, the death of hundreds of thousands in our Civil War, and post-Civil War terrorism, which was often left unchecked by the courts. Implicit bias and racism infect our profession as they do society as a whole. They inhibit our cultural growth, impede the progress of minorities into the profession and onto the bench, and even threaten the welfare of the Missouri nonpartisan court plan.
To offer some perspective: In 1984, when I became a Missouri lawyer, the judges statewide included only 16 Caucasian women, four African-American men and one African-American woman. Of these, the nonpartisan court plan had facilitated the appointment of seven of the women – including the lone African-American woman – and all four African-American male judges. All of these were on our trial courts – no woman and only one black man had been appointed to the appellate bench, and neither to the Supreme Court.
Now by 2004, judicial diversity had improved. The Supreme Court had its first African-American man serving as chief justice, and one Caucasian woman. Our appellate bench, out of 32 members, included one African-American woman, seven Caucasian women, one Hispanic man, and two African-American men (including me). The trial bench included 46 Caucasian women, 11 African-American women; nine African-American men; one Hispanic woman; and one Hispanic man.
Of the judges then serving statewide, the nonpartisan plan had facilitated the judicial appointment of 29 of the Caucasian women, all 12 African-American women, and all 11 African-American men.
But as you know, selection is only one piece of the nonpartisan court plan. Another piece involves retention elections – but how voters have been informed has been by trial and error.
In 1948, when no minorities or women served on the judiciary, The Missouri Bar simply surveyed lawyers to vote yes or no as to whether a judge seeking retention should be retained and made the results of these surveys public.
First participating in retention elections in 1980, women judges – including African-American women judges – did well with voters, earning higher percentages of “yes” votes than their male counterparts.
In 1992, however, responding to a significant downturn in retention percentages for nonpartisan judges across the state, the bar expanded its survey, asking lawyers to “grade” judges on a scale of 1 to 5 using criteria such as courtesy, integrity and legal analysis.
Now anecdotally, African-American judges across the state began noticing their ratings were lower than their Caucasian – and particularly their male Caucasian – counterparts. Not until 2006 did anyone attempt to quantify, through a data study, the apparent disparity between the genders and races in the bar surveys.
Two years later, the court required the bar to establish review committees – one for each nonpartisan trial court and one for the appellate courts – to conduct “judicial performance evaluations” of judges facing retention. The JPEs, as they are called, had been used for decades in a number of other states.
Even after the JPE process was established, minority judges continued to receive lower ratings than their white male counterparts, but no one – including me – spoke out, as it seemed only natural that a bar dominated by white men would “like” and find more “popular” judges coming from their neighborhoods and churches. I wish I had said something then, because the impact of implicit bias only became more acute.
You may think this is just about my family, and to some extent, it is. But it goes so much further than the result of any one judge’s retention election. This issue is about all the lawyers who leave their practices behind to become judges, and it crosses racial lines. Being a judge is a position of honor and sacrifice. We owe it to all our nonpartisan judges – and especially to women and judges of color – to ensure any rating we give them comes from a system as free from implicit bias as we can make it, and it is truly based on an objective evaluation of their performance in office.
But I also remind you there is a reason the court has mandated implicit bias training throughout the judiciary and has amended Rule 15 to require “elimination of bias” training! Clearly, I am discouraged by the effect of implicit bias on our JPE system, but I will continue to support the Missouri Nonpartisan Court Plan.
Do not misunderstand me. I believe in the integrity of the nonpartisan court plan, and the good it has done and continues to do. Our state is not just black and white. The most recent demographics show approximately 18 percent of our state’s residents are racial minorities, while our judges statewide are approximately 14 percent minority. This could not have happened without the Missouri nonpartisan court plan. But we can, and must, do so much better.
We could choose to follow the example of states such as Illinois by ensuring the criteria by which we evaluate our judges are designed to reduce biased responses, instead focusing on concrete, objective, directly observed judicial behaviors. And then it is incumbent on all our attorneys, across the state, to act ethically and responsibly in evaluating judicial performance if the plan is to survive.
We are leaders. We are innovators. But we also must be collaborators. We must act as a fully integrated bar – in every sense of the phrase – and finally pull our feet from the mud. Those recalcitrant practitioners, mired in their unconscious bias, who perpetuate the myths and lost causes of discrimination must, if unwilling to be educated, be exposed and marginalized.
Weaponizing our nonpartisan court plan against any particular class of judges hampers its effectiveness and encourages exactly what it was designed to check – politicization and tampering by forces seeking to gain greater influence on the composition and independence of our judiciary.
George W. Draper III is chief justice of the Supreme Court of Missouri. This is edited from his address at the joint annual meeting of The Missouri Bar and the Judicial Conference of Missouri on September 19.