341: Judicial Retirements, Vacancies, and What we need to do to support diversity in the judiciary

Memphis Bankruptcy Judge David Kennedy is retiring after nearly 40 years on the bench. Yes, 40 years.

Way back in 2010, I wrote about Judge Kennedy as he approached his 30th anniversary on the bench, telling the story about how he graciously hosted me in his Court when I was a 1L law student and, in a way, set me on a course that has led to my 20 years (and counting) in bankruptcy law.

It’s a great reminder: Sometimes the smallest kindness and gift of your time and encouragement can make a meaningful impact on somebody.

In related news, there’s a Judicial Vacancy for a Bankruptcy Judge in Memphis! Yes, I know this, and I’ve had at least 5 people email me this United States Bankruptcy Judgeship Notice of Vacancy.

Yes, I dreamed of being a judge. Yes, I’m from Memphis and love Memphis. Yes, I’m an award winning Best of Bar, Super Lawyer, Best Lawyers in America Bankruptcy Lawyer.

That would be an awesome job, in a community that has an incredibly large volume of financially distressed consumer debtors who really, really need a smart, progressive, creative judge. Talk about a place where a civic- and policy-minded judge can really make a difference and change lives…

But, it’s not going to be me.

Some of you may know this, but I was invited to interview in December 2019 with the Merit Selection Panel in Memphis for Judge Paulette Delk’s recent bankruptcy judgeship vacancy. The interview–to put it lightly–discouraged me from submitting my name for another vacancy so soon. (And, side note, I’ve already switched jobs recently.)

Judicial Diversity Matters. There were probably dozens and dozens of reasons I didn’t make the final round (and the ultimate pick was an absolute home run). But, based on the content and vigor of the questions to me, I discerned that, maybe, a white male (and, also, from Nashville) wasn’t their first choice (or choices 2 through 5, either, for that matter).

And, if true, they were absolutely correct (though I still question the “vigor” with which the questions were presented to me–yikes). Long before my interview, I’d been talking about the lack of judicial diversity.

We live in a time of monumental awareness of these issues, but our judiciary doesn’t always reflect the diversity of the communities that it serves. If we’re going to seize this moment and truly work for equality and true representation, isn’t this something that we should always factor into decisions?

When people have the power to hire, grant partnership, or appoint to a position, isn’t that a better consideration than “His dad is friends with _______” or “He goes to the same church that I do” or “He is an ‘opportunistic’ hire”? That’s called “affinity” hiring. Don’t do that.

Clients, we need your help. I put the call out, last year, to clients as well. I said:

I’ll go one step further: I think law firm clients need to think about this as well. When a client hires a law firm, are clients asking about diversity? Are clients challenging law firms to take a hard look at their internal policies?  Do clients care about diversity and, if so, how are they expressing that to law firms?

I don’t perceive this to be a trend in our local legal community. Don’t get me wrong; everybody talks about diversity, but, in the end, lawyers and law firms focus mostly on the bottom line, traditional ways of doing things/hiring, and a social/cultural network that tends to promote the status quo. How can we change this?

Real change in the legal profession will not happen until clients start pushing these issues as well.  Clients can vote with their dollars. If these issues are important to clients–and they should be–clients can force this discussion and impact the profession. If you’re a potential client and you care about this, ask prospective law firms what they do to promote diversity, whether in hiring or in the community.

This is a way to get more people of color into judicial spots. Clients, demand diversity in staffing your work. Make it a priority. Law firms will listen. With more opportunities for meaningful legal work and assignments, lawyers from under-represented backgrounds will gain experience that will change the trajectory of their career. Law firms are full of talk when it comes to diversity; real change requires that clients make it a priority.

To quote a tweet from Tiffany Graves:

Author: David

I am a creditors rights and commercial litigation attorney with Harris Shelton in Nashville, Tennessee.

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