August 2001

Editor's Page

Two Cents' Worth

by Mark A. Panitch, Bar News Editor

Diversity has become a watchword, a catchphrase and a shibboleth. Its purveyors and detractors use the word as a weapon in a political war that seems to have less to do with broadening the cultural and ethnic base of the Bar to reflect America, and more to do with protecting various established group rights. A variation on this drama is now playing itself out on the WSBA Board of Governors.

Opponents of expanding the BOG seem to argue that there is only so much democracy, and that isn't enough to go around. Supporters argue that their constituencies are not strong enough to fight in the main event, so they want BOG seats reserved for "diversity" members. In effect, both sides (or more accurately, all sides) seem to think that Bar politics is a zero sum game, as if there is a finite amount of political power, and if somebody gains, everybody else loses.

This may seem to be a reflection of our competitive American culture, but it's not an accurate reflection of the WSBA. The reality is that there is plenty of political power to go around. In fact, there is more than enough, but what is lacking are members willing to engage. This is ironic, because as lawyers we are seen by others as the most aggressive, self-aggrandizing, pushy, arrogant and ego-driven members of society.

Almost two years ago Bar President Richard Eymann challenged the Bar to put up or shut up on the issue of diversity. In principle, he urged the creation of "diversity" seats on the BOG to be reserved for members of the state's various ethnic bar associations. There were hearings around the state that resulted in cautiously favorable reports. Over the past year the BOG has devoted more hours of debate to this issue than any other. The concept overcame both political and constitutional hurdles, and last spring the BOG agreed to amend the WSBA Bylaws to create two additional board seats for "underrepresented" segments of the WSBA membership.

What constitutes "underrepresented," you may ask? The answer seems to reflect that famous Supreme Court principle: "I'll know it when I see it." But once we get past the snide cracks about survivalist lawyers from Okanogan, or farmer lawyers from Asotin, or logger lawyers from Mason County, we all know what we are talking about.

Washington, along with the rest of the country, and especially the West Coast, is becoming a much more culturally and ethnically rich place. Seattle's International District is actually becoming a Pan-Asian center. Not so long ago the average Washington State Patrol trooper was a blond, male six-footer and was seen as a reflection of the state's population. Now troopers come in virtually all shades, sizes and genders, and the WSP is still a reflection of the population. And it's not just the Seattle Public Schools that have to cope with a dozen or more native languages in any given classroom — now that is true in almost every county in Washington.

Recently, attorney diversity — actually lack of diversity — has been the subject of several major newspaper stories. There is an important unspoken message in all the talk about diversity: a legal system populated largely, if not exclusively, by people who look different from significant segments of our society will be seen as unreachable and ultimately irrelevant to them. Unlike other common-law countries, the hallmark of American justice is accessibility — the courthouse is supposed to be open to all.

Our open and accessible justice system has served us as an important social safety valve. Immigrants from dozens of different countries soon learned they could "go to law" to settle even minor disputes that often were the result of culture clashes and innocent misunderstanding. This is not to say that the system has been perfect — many people were excluded or suffered abuse in the courts. But for those with access to the system, the system mostly worked. Now when we talk about diversity, we are really talking about access, and access virtually equals legitimacy. For those who see themselves as outsiders in society, the law is irrelevant. It's not a very long step from irrelevance to illegitimacy.

So it's always somewhat disconcerting to look around a meeting of the Board of Governors. All the faces at the table are white and well-established, as are almost all of the liaisons ringing the meeting room. The only time in the past year when a BOG meeting displayed some real diversity was during a meeting largely devoted to the diversity-seat issue — when several members of ethnic bar associations showed up to lobby for the seats.

Built into President Eymann's challenge, as well as the response from the various ethnic bar associations, was the assumption that "if you build it, they will come." Unfortunately, that does not seem to be the case. As of the third week of July — two weeks before nominations close — fewer than five persons have applied for a new seat.

I don't know if people are just shy or are hanging back to see what their friends do. I sincerely hope that something happens in the next few weeks to energize all those people who fought so hard to open the BOG to younger, darker and less well-established lawyers.

It would be a real shame if the opponents of diversity won by default. And the irony would be nearly unbearable if their greatest allies turned out to be the people who fought so hard for these seats and then turned their backs on the opportunity.

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