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Judges and Judiciary

Mar. 26, 2019

African-American women on the California bench: a history

Brenda F. Harbin-Forte, a judge on the Alameda County Superior Court, has researched and written about African-American women pioneers in the law since the 1980s.

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Brenda Harbin-Forte

Supervising Judge (Retired),

Retired November 2019, Judge Harbin-Forte is chair north of the Judicial Council of the California Association of Black Lawyers.

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California Supreme Court Justice Leondra Kruger

"Judges can and do influence each other. They exchange ideas on and off the bench. A [diverse] judiciary ... leads to an interplay and exchange of divergent viewpoints, which in turn prevents bias, and leads to better, more informed decision making. Diversity of opinion among decision makers encourages debate and reflection, and fosters a deliberative process that leads to an end product that is greater than the sum of its parts." Editorial, American Judicature Society Magazine, March/April 2010 ed.

In March 2007, the Daily Journal published my article on African-American women pioneers in California's legal profession. "Pioneer Spirit" (Mar. 5, 2007). In that article, I introduced readers to California's first African-American woman attorney, Annie Virginia Stephens Coker, who was admitted to the bar in 1929; our first African-American woman on a federal court, Judge Consuelo Bland Marshall, who was appointed to the U.S. District Court for the Central District of California in Los Angeles in 1980, and the first African-American woman on our state courts, Justice Vaino Hassan Spencer, who was appointed to the Los Angeles Municipal Court in 1961.

I wrote the original version of that article in 1982, in response to a program put on by the U.S. District Court's Northern District Historical Society. The program, titled "Then and Now: Women in the Law," celebrated the history of women pioneers in the law. All of the honorees were Caucasian women, and not one mention was made of California's first African-American woman lawyer. Why, I wondered, was "I" overlooked? Surely there was the first African-American woman lawyer in California on whose shoulders I stood. Never shy, after the program I raised my concern about the oversight, and offered to write an article on women lawyers who looked like me. I researched Annie Virginia Stephens Coker's life story, and the life stories of the other pioneers mentioned in my article. The article, titled "Black Women Pioneers in the Law," was published in the Historical Society's newsletter, The Historical Reporter.

Over the years, I have continued to track the history and achievements of African-American women in California's state and federal judiciary. Women's History Month provides an opportunity both to celebrate our achievements, and simultaneously to lament the absence of African-American women's voices on some our courts, especially our appellate courts.

If the saying "experience is the life of the law" is true, then it seems that the experiences of African-American women, which are so different from those of other women, would bring a welcome and rich dimension to the life of the law.

Perhaps the most famous historical illustration of the different experiences of African-American women is found during the Women's Suffrage Movement, when the tension between the fight for women's rights and the fight for the rights of slaves was coming into relief. Sojourner Truth, an emancipated slave, gave a speech at the Ohio Women's Rights Convention in Akron, Ohio in 1851. In one version of that speech, Sojourner Truth queried: "That man over there says women need to be helped into carriages, or lifted over ditches, and to have the best place everywhere. Nobody ever helps me into carriages, or over mud puddles, or gives me any best place. And a'int I a woman? ... I have borne thirteen children, and seen most of them sold off to slavery, and when I cried out with my mother's grief, none but Jesus heard me! And ain't I a woman?"

In Mississippi, where I grew up, culture dictated that African-American women were never to be addressed with an honorific. Our mothers were called by their first names -- not "Mrs." or "Miss." It was certainly a way to remind our mothers that they held a lowly place in society, and some black girls internalized that perception. So my experiences were certainly different from those whose mothers were addressed as Mrs., or who themselves were addressed as "Miss." I mention this because of the observation by Supreme Court Justice Byron White: "Even the most conscientious judge will have difficulty in imagining the thoughts and feelings of people who have grown up in groups that his culture has trained him to see as outsiders." White, "A Tribute to Justice Thurgood Marshall," 44 STAN. L. REV. 1215, 1216 (1992).

The pioneers on the federal courts physically located in California are reflected in the chart below. Neither California's 9th U.S. Circuit Court of Appeals, nor California's district courts for the Eastern District or the Southern District, have had the privilege of having the experiences of African-American women judges inform any of the countless decisions those courts have made. (The 9th Circuit court located in Nevada does have an African-American woman, Judge Johnnie Rawlinson). Currently, there are only three Article III African-American women judges sitting in California, Chief Judge Phyllis Hamilton and Senior Judge Saundra Brown Armstrong, in the Northern District, and Senior Judge Consuelo Bland Marshall, in the Central District. (There are also three other African-American women bench officers: Judge Erithe Smith, U.S. Bankruptcy Court in the Central District, Magistrate Judge Kandis Westmore in the Northern District, and Magistrate Judge Karen Stevenson in the Central District).

California's state appellate courts tell a similar story. The chart below shows the African-American women pioneers at the appellate level. After the California Supreme Court's first African-American woman Justice Janice Rogers Brown left the bench in 2006, it would be eight years before another African-American woman would serve on that court, by way of Gov. Jerry Brown's 2014 appointment of Justice Leondra Kruger.

On our district courts of appeal, a more troubling example of the absence of African-American women's voices emerges. California's first African-American woman on an appellate court was Justice Arleigh Woods, who was appointed to the 2nd District Court of Appeal by Gov. Jerry Brown in 1980, during his first stint as governor. Yet this phenomenon exists: In the 90 years since Annie Virginia Stephens Coker graduated Boalt Hall School of Law (now Berkeley Law) in 1929 and was admitted to the bar that same year, and in the almost 50 years since California's first African-American woman state court judge was appointed, and in the almost 40 years since the first African-American woman judge in Northern California was appointed to the trial courts, no governor has ever appointed an African-American woman to the 1st District Court of Appeal in San Francisco! The same lack of diversity exists on the 5th District in Fresno, and the 6th District in San Jose.

During Gov. Brown's most recent two terms, there were 12 different justices appointed to the 1st District, five appointed to the 5th District, and four appointed to the 6th District, for a total of 21 appointments, but no African-American woman was appointed to any of those benches. Gov. Arnold Schwarzenegger made a total of 14 appointments among the 1st, 5th and 6th Districts, but no African-American woman got tapped (although he is to be applauded for appointing Justice Carol Codrington in 2010, the first African-American woman to sit on the 4th District). On this article's publication date, there are only three African-American women on our appellate courts (Supreme Court Justice Leondra Kruger, 2nd District Justice Audrey Collins, and 4th District Justice Carol Codrington), out of 111 filled appellate seats (seven on the Supreme Court and 104 on the courts of appeal).

Examining our trial courts (former municipal courts and superior courts), we find that only 19 of 58 counties have ever had an African-American woman judge. Thus in 39 counties, no African-American woman's experiences have ever brought life to the law in those courts. Currently, only 18 counties have African-American women judges on their courts. Of the trial court pioneers reflected in the chart below both Judge Monique Langhorne in Napa and Judge Amarra Lee in San Mateo were just appointed last year. Today, there are only 83 African-American women superior court judges out of almost 1,700 funded trial court seats, for approximately 5 percent of superior court judges.

Diversity of all kinds makes for a better quality of justice in our courts. The experiences of African-American women contribute to that enhanced justice. Supreme Court Justice Byron White, in describing the value that Justice Thurgood Marshall brought to the U.S. Supreme Court, stated that "Justice Marshall would tell us things that we knew but would rather forget; and he told us much that we did not know due to the limitations of our experience."

Our stories as African-American women are different, our experiences are different, our diversity is different. We bring a unique and rich dimension to the concept of justice in our court systems. As was true of what Justice Thurgood Marshall brought to the U.S. Supreme Court, we too can tell our colleagues things that they could never know, due to the limitations of their experience.

Gov. Gavin Newsom follows the hard act of Gov. Jerry Brown, who made many historic appointments and created the most diverse court system in the history of our great state. But there are still, sadly, many "first" African-American women to be appointed. The vacancy on the 1st District is that of retired Justice Martin Jenkins, who now serves as Gov. Newsom's Judicial Appointments Secretary. It is my fervent hope that Gov. Newsom and Justice Jenkins will make more African-American women's history on our courts, and especially on our appellate courts.


Ben Armistead

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