For 10 years, Massachusetts judges have been quietly and anonymously rated by the lawyers who appear before them.
Jurists are rated on a broad range of issues, from their courtroom courtesy to their promptness in delivering written opinions. The lawyers’ ratings, delivered via anonymous questionnaires, are the state’s only formal system for judging the state’s judges, who are appointed until retirement at age 70.
Over the years, a disturbing theme has surfaced, at first anecdotal, and now confirmed by social science: Black judges are rated far more negatively — some might say trashed — compared with their white counterparts. Most of the lawyers doing the evaluating are white.
The suspicions of racial bias were serious enough to prompt the appointment late last year of a high-level judicial commission to look into the evaluations. Two Harvard professors brought in to evaluate the process found substantial evidence of racial bias against black judges. That has caused deep soul-searching among the judiciary, even as they have debated the implications and tried to keep the findings under wraps.
It has also caused deep anguish among black lawyers and judges, who — for all their professional success — continue to feel stung by institutionalized racism. The rifts are so deep that two black judges appointed to the committee quit it several weeks ago, telling associates that their views were being ignored.
‘We knew it anecdotally from one another. No one is surprised.’
Superior Court Judge Shannon Frison, president of the Massachusetts Black Judges Association, said the analysis has confirmed what her members have long believed, that in the eyes of their white colleagues, they are viewed as inferior.
“We knew it anecdotally from one another,” Frison said. “No one is surprised. People are just . . . mad. Now that has been validated by someone outside the trial court, someone with no dog in the fight.”
The commission is headed by Judge Paula Carey, chief justice of the state’s trial court. Mark Blais, a psychologist at Massachusetts General Hospital and Harvard professor, is one of the two specialists hired by the commission to examine the rating process, and assess its shortcomings. Some judges have argued that, potential racism aside, an anonymous questionnaire is simply a lousy way to assess judges.
The evaluations have consequences. Judges who score poorly are often assigned to various remedies that can be professionally embarrassing — like extra mentoring by a more senior judge, or having to take continuing education classes. In addition, when they seek to move to higher courts or to become administrative judges, their weak reviews work against them, forming a de facto glass ceiling.
Blais and his associate, Samuel Sinclair, have filed three reports. The first two, delivered in February and April, used slightly different data summaries, but were nearly identical in concluding that the deviation in the results between white and black judges was the product of racial bias. (Researchers found no bias on the basis of gender.)
“With regard to racial bias, results showed that Caucasian judges scored significantly higher on all [judicial performance] survey items compared to minority judges, and the magnitude of those differences was meaningful,” summarized one report.
The researchers did not simply crunch numbers. They also convened three focus groups of lawyers and judges in a bid to examine racial attitudes.
Here was their conclusion after one of them: “The general theme that emerged was the idea that persons of color do not match the expectations of what a judge should look like, and therefore confront more doubt, mistrust, and interpersonal tensions than do non-minority judges.”
The researchers also said minority judges felt greater pressure to maintain a formal atmosphere in the courtroom.
“It was felt that when combined, these factors increased the potential for minority judges to be labeled as intolerant, a bully, insensitive, and disrespectful, especially when asserting judicial authority.”
A third report in May, based on slightly different data, also found meaningful disparities, but was far less definitive about whether they were the product of bias. It was not clear what besides bias — such as sample size or underperformance — might have caused the disparities.
That report served only to further inflame the debate by raising the unacceptable inference that black judges may in fact, be underperformers.
In an attempt to quell rumors about the studies, every judge in the state has received a link to all three of the reports, which have been obtained by the Globe.
“Nobody even understands why there are three reports,” Frison said. “It was already messy, and having three reports just adds a layer of issues that doesn’t need to be there.”
Blais, the lead researcher, declined Tuesday to discuss his work, referring all questions to the court system’s press office.
So what happens now?
In a written statement on Tuesday, Chief Justice Carey said the questionnaire will be revised before the next round of evaluations, later this year.
She wrote: “Responses will be monitored on an ongoing basis to see if there continues to be any indication of bias, as no amount of bias is acceptable, and court leaders are determined to continue efforts to ensure that the questionnaires are a fair and useful tool for all judges, and that the process will allow all judges to achieve the fullest development of their professional skills.”
Whether that plan will be enough to quell the controversy is an open question. Frison said her group will recommend that the evaluation process be put on hold until a questionnaire is adopted that all parties can support. The Black Judges Association also hopes to meet with Carey to voice its concerns.
Regardless of any resolution, the disparity itself has opened a wound in a profession that likes to think of itself as a community. That isn’t likely to be fixed by revamping a survey.
“We are minority judges, so I’m dealing with the way people feel about me every day, whether it’s written or unwritten, stated or unstated,” Frison said. “This is a pretty big black eye on the bench in Massachusetts.”