Biased about being biased

My colleague Justice Martin Tangeman brought to my attention and my colleagues in Division 6 a survey taken in July of 2020 by the National Judicial College. In 2017 the college launched an informal monthly, non-scientific survey to the college's more than 12,000 judicial alumni. The goal was to provide insight into beliefs of the judges all over the country.

The survey posed this provocative question: "Do you believe that systemic racism exists in the criminal justice system?" 634 judges replied. The breakdown of their vote was 65.24% yes, and 34.76% no.

This survey prompted me to ask how judges responding to the survey defined racism. A prominent attorney friend of mine thought the definition of racism has radically changed from how we defined that term in the 1950s and 1960s. In those days, many people thought, perhaps naïvely, that racists were those who were openly explicit in their prejudice. They were not shy in opposing desegregation and unabashedly used highly offensive language to describe persons of diversity.

In a recent article published in the National Judicial College's Journal, "Judicial Edge Today," Anna-Leigh Firth comments on the judges' reaction to the poll. Their reaction does not suggest the more narrow definition of "racism" I described from decades ago. The majority of judges viewed "racism" as a reflection of implicit bias. One judge wrote, "[M]any people don't recognize that bias exists or are unwilling to admit it." On implicit bias, another judge wrote, "Of course [implicit bias exists]. The data doesn't [sic] lie. The burden on us judges is to, first, acknowledge the problem and then to work diligently to eradicate the problem." Another judge wrote, "Any judge who is not educated on the reality of systemic racism and implicit bias and aware of the consequences of these issues should not be on the Bench."

Most judges throughout the country believe in the existence of implicit bias. They understand that judges, and people in all walks of life and professions, may unconsciously act on those biases. When I use the word "people," I am referring to all people. That includes people from diverse cultures and ethnicities.

Los Angeles County Superior Court Judge Helen Zukin, who spearheaded the judicial mentor program, introduced in a Zoom meeting the noted scholar and expert on implicit bias Professor L. Song Richardson to speak to judges on the governor's Judicial Selection Advisory Committees on implicit bias. In her enlightening discussion, Professor Richardson, whose mother is Korean and her father Black, spoke of how she, with her sensitivity and expertise on the subject, had demonstrated her own unconscious bias. She and her husband were finishing their dinner at a Chinese restaurant. She was then dean of the law school at the University of California at Irvine. She was in a hurry to get back to school to grade papers and attend to administrative matters. She asked for the check from a Chinese gentleman standing nearby. You guessed it. He was not a waiter but a patron.

Professor Richardson and I corresponded, and she noted a column I had written years ago about my experience driving with my wife, Barbara, through the Korean section of downtown Los Angeles. A van driven by a man, who appeared to be Korean, suddenly pulled in front of me, causing me to slam on the brakes to avoid crashing into the back of his van. Cars behind me came to a screeching halt. I pulled into the adjacent lane and saw that he was laughing at me. I stepped on the gas, tires screeching, and pulled away from him. I was in a rage. Barbara said, "take it easy," but I wasn't listening. By the way I never act this way at oral argument. And Barbara's comment was expurgated. I deleted the word that preceded "take it easy."

Back to the action. The driver in the van followed me, laughing all the way. My rage reached epic proportions. I sped away from him, but he kept following me. I pulled up to a red light and he pulled up next to me, still laughing. He rolled down his window. I didn't see a weapon, so I rolled down my window. I could not hear clearly what he said, but I could read his lips, "I am so sorry." I, pointing to my head, said, "I thought...." He smiled and nodded that he understood. The light turned green. We gave each other a friendly wave goodbye and drove off. It was half a block before I could find a place to pull over to the curb for a few minutes. Barbara squeezed my arm.

So, while my colleagues and I strongly support education and awareness to heighten our sensitivity to implicit bias, I cannot help but pose the question of whether we may take that concern too far? Can we carry our concerns about a person's sensitivity respecting offensive language to extremes? In our judicial opinions, when quoting relevant language that contains offensive words, must we edit and delete the language? Do we use initials in place of words because "everyone knows what the offensive words are"? Our cases are driven by facts, and, depending on the circumstances and relevance of those facts, in subtle ways we may blunt the edge of justice by the deletion of words or phrases that may alter those facts. Are we to condemn those who use offensive words in the context of a speech or article for the purpose of condemning the use of those words?

I hope to summon up the courage to pursue this topic in my next column. 