SALT LAKE CITY — Criminal defense attorney Jiro Johnson has a tough time convincing his minority clients that they will get a fair shake from Utah's predominantly white judges.
"When they see the other side of the bar — the attorneys, the judges, the staff — they don’t see themselves represented," he said at a recent legislative meeting. "They do not trust that system, and that's problematic."
Utah has one of the least, if not the least, diverse judiciaries in country. It received a failing grade and ranked last in the nation for diversity among its state-appointed judges from a progressive law and policy organization a couple of years ago.
The American Constitution Society's 2016 report called the Gavel Gap found 79 percent of Utah judges are white men, 13 percent white women and 4 percent each of men and women of color.
The study shows that those numbers do not reflect the state's demographic makeup at the time of 40 percent white women, 38 percent white men, 12 percent men of color and 10 percent women of color.
Currently, of the 150 state judges, 10 identify as a racial or ethnic minority and 30 are women, according to the Administrative Office of the Courts.
Utah has had only one black judge, Tyrone Medley, who retired from active status in 2012.
"We're just too much the same person," said Sen. Jim Dabakis, D-Salt Lake City, who has pushed for a more diverse bench since taking office in 2012. "We are just completely unreflective of the population."
The Legislature's Judiciary Interim Committee discussed the issue last week but didn't reach any conclusions. It's slated to talk about it again next month.
Sen. Todd Weiler, R-Woods Cross, committee co-chairman, said it's not fair to compare the judiciary to the population because only attorneys may be considered for judgeships.
Still, Weiler recognizes the lack of diversity in state courts. "We are dominated by white males," he said.
When they see the other side of the bar — the attorneys, the judges, the staff — they don’t see themselves represented. – Jiro Johnson, criminal defense attorney
In Utah, a nominating commission screens applicants and sends five names to the governor for district and juvenile court openings and seven names for appellate and supreme court positions.
The Utah Constitution says the selection of judges must be based solely on fitness for office and prohibits the panel from considering race or gender when it vets candidates.
More often than not, all five are white men, and sometimes one or two are women, said Weiler, chairman of the Senate Judicial Confirmation Committee.
The governor picks one who then goes before the confirmation committee. Applicants who clear that panel go to the full Senate for consideration.
Dabakis, a member of the confirmation committee, has voted against the last three white male nominees, though he concedes they were qualified for the job. He said he will continue to do so until Gov. Gary Herbert comes up with a plan to change the system.
If the courts can’t manage that trust and confidence from the entire community, they’re at great risk, and I think that trust and confidence can be built by a more diverse bench. – Christine Durham, recently retired Utah Supreme Court Chief Justice
"For the last six years, the governor has ignored my advice. I could think of no other way to get his attention and the attention of the whole system that we're a changing state. This is not the Utah of 1950 anymore," said Dabakis, who isn't seeking re-election this year.
Herbert, who interviews the candidates, has said he chooses the most qualified person.
Serving as governor since 2009, Herbert has appointed more than half of the current judges, about a third of whom are women. Last December, he named Utah's first openly gay judge, Camille Neider.
Weiler, an attorney, said the governor can only pick from the names he's given.
"He can’t go out and find a lawyer on the street and say, 'Hey, I’m going to appoint you to be a judge,'" he said.
The pool the state has to draw from is small and overwhelmingly male. Of the 9,844 members of the Utah State Bar, only 1,811 or 18 percent are women. The bar only has a breakdown by gender.
The two law schools — one public, one private — in the state turn out few minority lawyers.
At the University of Utah, 88 of the 2016-17 graduates were white and 20 were minorities, according to the school's most recent disclosure report. At Brigham Young University, 108 were white and 22 were minorities for the same school year.
Dabakis said it's time to stop calling it a "pipeline" issue and commit to changing the system. He said the state should pay to spend a million dollars on a "boot camp" at the U. law school for minority students and bring in U.S. Supreme Court justices and other legal scholars to mentor them.
Recently retired Utah Supreme Court Chief Justice Christine Durham and Fran Wickstrom, of the law firm Parsons Behle & Latimer, head an effort to promote equity and inclusion in the state's legal system.
The newly created nonprofit Utah Center for Legal Inclusion aims to foster educational and advancement opportunities for students and lawyers with diverse backgrounds and eliminate bias in the courts. Board members include Attorney General Sean Reyes, Salt Lake County District Attorney Sim Gill and former federal Judge Sam Alba.
"If the courts can’t manage that trust and confidence from the entire community, they’re at great risk, and I think that trust and confidence can be built by a more diverse bench," Durham said at the legislative meeting.
Durham said the group is not suggesting judges be nominated or approved based on race or gender. It also isn't advocating changing state law requiring them to be selected based on fitness for the job.
The center wants to mentor schoolchildren and encourage, particularly underrepresented groups, to consider law as a profession and recognize the value of public service, Durham said.
Lauren Shurman, of Women Lawyers of Utah, told lawmakers that the lack of diversity among judges in and of itself creates a "confidence barrier" for potential applicants. Women have few mentors to help them through the application process, which she said is intimidating and "shrouded in mystery."
Race needs to be looked at. Gender needs to be looked at. Sexual orientation needs to be looked at. Background needs to be looked at because that’s part of who you are. – Jiro Johnson, criminal defense attorney
Also, many female attorneys fought hard for their positions at law firms and applying for a judgeship could give the impression they're not committed to their jobs, she said.
The group pairs up women lawyers with women have gone through the nomination process to help them know what to expect, Shurman said.
Weiler said substantially lower salaries for judges also deter lawyers from seeking public service jobs because they can make a lot more money in the private sector.
At the legislative meeting, Durham and Wickstrom were asked if the legal inclusion center sets goals for improving diversity. Wickstrom said they want to see judges be more reflective of the community but that goals turn into quotas, which they don't favor. Weiler, too, opposes quotas.
Johnson, president of the Utah Minority Bar Association, said the state needs to take affirmative steps to improve judicial diversity. The group provides $40,000 in scholarships annually to encourage law students with diverse backgrounds to practice in Utah.
"Race needs to be looked at. Gender needs to be looked at. Sexual orientation needs to be looked at. Background needs to be looked at because that’s part of who you are," he said.
Sen. Lyle Hillyard, R-Logan, said diversity goes beyond race or gender. He said he cheers when he sees a potential judge who has a criminal law experience in a small firm and with small cases. Hillyard, a lawyer, said he gets nervous when all the judges come from big firms and big cases.
"So often, when you start measuring diversity, it's much, much, much more," said Hillyard, a longtime member of the confirmation committee.