Virginia Lawyers Weekly

Dear Editor:

On June 18, the Virginia State Bar Council will consider the proposal of the “Diversity Task Force” established by the current Bar President, Manuel Capsalis.

Mr. Capsalis and the Task Force have asked the Council to approve a new fundamental obligation of the Bar “to promote diversity in the administration of justice and the practice of law,” to establish a Diversity Conference with the principal mission to “foster and encourage diversity in the admission to the bar and advancement in the legal profession and the judiciary,” and to add an ex officio seat on the Council and Executive Committee designated for the chair of the Conference. The proposed bylaws for this new Conference would require favorable treatment for “diverse individuals” and “lawyers of diversity” in the profession and “at all levels of the judiciary.”

Strangely, the Task Force does not define the terms “diversity,” “diverse individuals” or “lawyers of diversity” as used in their proposal. Mr. Capsalis has pointedly and publicly declined to define “diversity,” despite arguing that, whatever it is, it is an urgent imperative.

Some Task Force members have even said that “everyone” is a person of diversity, which would obviate the need for a “diversity” conference. None have offered a clear definition.

For Mr. Capsalis and the Task Force, the problem with any kind of clarity in their initiative is that it would run afoul of Article I, § 11 of the Virginia Constitution, which explicitly prohibits the commonwealth from discriminating on the basis of race, color, ethnicity or sex.

A passing review of the materials supporting the “Diversity Initiative” published in the Virginia Lawyer and on the Bar Web site, however, leave no doubt that “diversity” is defined by race, color, ethnicity and, to some extent, sex; such that persons or groups who meet certain racial, ethnic or sexual criteria would be entitled to the special promotion and favor of the Bar and judiciary, and others would not. Specifically, “diverse individuals” would not include persons of European or Jewish ancestry, but would include African Americans, Latinos and Asian Americans, among others.

Politically, the proposal embraces a “good” racism and sexism: that is, the promotion of certain persons and groups at the expense of others solely by virtue of their race, color, ethnicity or sex, and, in time, their sexual proclivities. As such, it would restore the Old Dominion’s past discrimination, but with a 21st Century feel, in which “persons of color” would be favored and “persons of pallor” would not. In his opinion piece in the October 2008 issue of Virginia Lawyer, Joe Condo, the Chairman of the Task Force, describes the “diversity” imperative.

To be truly responsive to the public we serve – to be able to empathize with their legal needs, their troubles and their struggles – our profession, and by extension the justice system, must reflect their diversity. At the moment, we do not: in a nation that in about 25 years will soon comprise more than 50 percent people of color, the legal profession is 92 percent white.

Mr. Condo – who fairly echoes President Obama’s “empathy-based” judicial selection criteria – believes that “whites” are over-represented in the profession, while “people of color” are under-represented, and, by inference, that “white” lawyers and judges cannot be truly responsive to the public, while “people of color” can.

This is the same sort of “good” racism and sexism expressed by Supreme Court nominee, Sonia Sotomayor, when she said: “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn’t lived that life.” Disciples of “diversity” view everything in society through a prism of race and color and ethnicity and gender: it’s less about justice than about power; it’s less about individuals than about group identity; it’s far less about equality than about superiority, as Judge Sotomayor’s frank remarks indicate.

Apropos the ideological cast of the “Diversity Initiative,” the Virginia Lawyer, under Mr. Capsalis’ leadership, has featured more than 20 articles, columns and opinions supporting the Initiative and none opposing it, other than a mix of letters to the editor. To my knowledge, the Bar invited no one to offer a countervailing or critical response and, certainly, published none. Instead, the Initiative has been a top-down campaign for a highly debatable, divisive political goal, paid for by the dues of Bar members, that brooked no diversity of opinion. An irony there.

But, whether or not one agrees with this ideology, the Bar is not the place for it: that would be at the polls or in the General Assembly or on a soapbox – anywhere one can advocate a substantial change in the law. The issue here is not whether private individuals or organizations may promote persons on the basis of race or ethnicity or whether a Bar filled with members from diverse backgrounds is a good thing. The issue here is whether the Bar and Virginia Supreme Court may require discriminatory treatment and require bar members to associate themselves with this practice. The answer is, it cannot. No agency of the commonwealth may properly practice or encourage this kind of discrimination, nor may the Bar force its members to adopt such a plainly political program.

Instead, as a profession, we should be committed to upholding the rule of law and the equal protection of all persons in the commonwealth – endeavoring to represent all of them well and judge them fairly, without regard to race, creed, color, sex or ethnicity – whatever our own physiological traits or heritage happens to be. In the generation since the commonwealth changed course on discrimination, allowing free people to pursue whatever they would, we have, in fact, seen a flourishing of people from all backgrounds at the bar and on the bench. Rather than divide members with this kind of initiative, we should endeavor to unite them and remain the integrated Bar that we are.

The Bar Council should reject this ill-considered initiative.

Joseph W. Stuart
Fairfax

Close this Window Bookmark and Share This Page

Save to Browser Favorites / Bookmarks

Print RSS Feed Ask backflip blinklist BlogBookmark Bloglines BlogMarks Blogsvine BuddyMarks BUMPzee! CiteULike co.mments

Connotea del.icio.us Digg diigo DotNetKicks DropJack dzone Facebook Fark Faves Feed Me Links Friendsite folkd.com

Furl Google Hugg Jeqq Kaboodle kirtsy linkaGoGo linkedin LinksMarker Ma.gnolia Mister Wong Mixx MySpace

MyWeb Netvouz Newsvine oneview OnlyWire PlugIM Propeller Reddit Rojo Segnalo Shoutwire Simpy Slashdot

Sphere Sphinn Spurl Squidoo StumbleUpon Technorati ThisNext Twitter Webride Windows Live Yahoo!

Email This to a Friend

Copy HTML: 

 If you like this then please subscribe to the RSS Feed.

More »