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The color of justice / January 14, 2016

Each year brings the retirements of prominent figures, but the fond farewells and hearty congratulations that greet such announcements can’t obscure a basic fact about life: everyone is replaceable.

Sometimes what isn’t so easy to replace is what individuals represent. There are times when people, by their mere presence, have an impact that goes beyond their station in life. When they affirm ideals that should matter to everyone.

Justice for all is one such ideal.

Justice that is blind — and color-blind — is another.

In less than four months, on April 1, one of only four circuit court judges in the 10th Judicial Circuit — which spans an area south from Halifax and Mecklenburg to Buckingham and Cumberland to the north — will be retiring. The bench will lose the full-time services of Circuit Judge Joel Cunningham of Halifax, who presides over court primarily in Halifax and Charlotte counties.

Cunningham is 67 and says he’s ready to enjoy the lifestyle of a semi-retiree — while continuing to hear cases as a substitute judge when needed. The 10th Circuit spans a huge, eight-county area and generates a fairly heavy caseload, so for as long as Cunningham keeps his name on the retired judges’ call-up list he figures to stay active. This is a good thing. I’ve seen Judge Cunningham ply his trade in court on many occasions — I’ve known him personally for much longer — and I don’t mind venturing the opinion that he’s a first-rate jurist. Fair but firm, consistent in his rulings, he stays on top of his docket and keeps abreast of the law. I doubt there are many lawyers who’ve come before his court — or defendants or cops or crime victims or parole officers or civil litigants — who would disagree.

There’s one other important thing to know about Judge Cunningham: the fact that he is African American.

In fact, he’s the only black person to sit on the bench in the 10th Judicial Circuit. He’s one of the few African American judges in Virginia west of Richmond, and likely the only black circuit judge presiding in this vast territory. (If anyone knows of another African American circuit judge in Southside, southwest or western Virginia, please let me know.) Of course, on one level, the only thing that should matter with a judge, Cunningham included, is whether or not he or she is competent. Judicial temperament, too, is incredibly important. Such qualities transcend demography. You can’t reduce them to check marks on a census sheet.

By the same token, however, fostering diversity on the bench ought to be more of a priority than ever with Cunningham’s departure. Not simply because diverse opinions are essential for a property functioning bench — but also because representation legitimizes justice.

Consider for a moment an issue that loomed large in the past year: the treatment of African Americans crime suspects — and non-suspects — by police. The Town of South Boston is facing a $25 million lawsuit by the family of a Richmond man who died after being taken into custody by town officers. The filing of the lawsuit — and subsequent reporting by MSNBC — tore a lid off of what happened on the night when the individual in question, Linwood Raymond Lambert Jr., died: He was tasered repeatedly by officers after attempting to flee outside the local hospital ER. Then, after being subjected to high-voltage shocks, he was taken to the local jail rather than being admitted to the hospital for medical treatment. Now, by no means is this a cut-and-dried case: by resisting officers, Lambert put himself in a different category than, say, Cleveland’s Tamir Rice, whose only offense before he was gunned down by police was to be 12 years old and holding a toy gun. But leaving aside specific facts and specific cases, ask yourself: Do we really want a bench that is lily-white and unrepresentative of the world around us monopolizing justice?

Open and full representation is incredibly important to the legal system — and democracy. People must feel invested in an institution to believe that it works for them. And part of this feeling comes from seeing people much like themselves in positions of authority. It’s no coincidence that South Boston’s chief defense against accusations of racism in the Lambert case has been to cite the pivotal role that African Americans carry out in local law enforcement. One of the officers who took Lambert into custody — and administered the most Taser charges — is black. So, too, is the deputy chief of the South Boston Police Department, one of the named defendants in the lawsuit. A State Police investigation of the officers’ conduct is in the hands of the county’s Commonwealth’s Attorney, who is white. But to ensure a fair review, she sought and obtained the assistance — the proverbial second set of eyes — of the Commonwealth’s Attorney for the city of Richmond, who is African American. Just as this past year gave rise to the mantra of “Black Lives Matter,” the official response to the Lambert lawsuit shows that black opinions matter, too.

Obviously such responses can be dismissed as window dressing; attitudes will differ on this score. What cannot be dismissed is the deficiency of a local court system where all the judges (save one) are male and white. Along with other controversies in 2015, we just endured the Year of Trump, in which America was reminded on a daily basis that a large number of voters — mostly white and middle aged — fear that the country is being overrun by a scary brown-and-black other. Whatever you may think of this point of view, it surely isn’t borne out in the makeup of the judiciary, which if anything has been slow to adapt to broad changes taking place across the country.

In Judge Cunningham, Southside Virginia has benefited greatly from having a man who escaped economic hardship and segregation to become a successful lawyer and then a judge, showing that America can and sometimes does make good on its ideals: an invaluable perspective for a jurist to hold. In an interview last week with the News & Record, Cunningham recounted his experience as a young college student of having a gun pulled on him by a white restaurant proprietor. How many judges around here have ever stared into the barrel of a gun? The episode resulted in a vigorous prosecution by the Commonwealth’s Attorney at the time, J. Willard Greer of South Boston, then a young attorney who made sure that such lawlessness would not stand. As we move further away from the era of racial segregation, our appreciation for courage as a core value of justice may lessen. Our present-day ability to appreciate the elusiveness of justice for people at the margins may suffer as well. For such reasons, the legal system badly needs the perspectives of people who arise out of something other than a comfortable middle- or upper-class upbringing. It needs people like Judge Cunningham.

This week, the General Assembly went into session for the year — and for local lawmakers, recommending a new judge to fill the vacancy created by Cunningham’s departure may be the most important item on their agendas. Unfortunately, any semblance of a rational judicial selection process has been overrun by Richmond politics, and the prospects of a Republican legislature and a Democratic governor settling on a person of color to join the local bench are not good. (It doesn’t help any that the pool of area African American lawyers to choose from is dismayingly small.) There are judges who preside in lower courts who probably would do a fine job in Judge Cunningham’s shoes, and chances are good that’s exactly where the replacement pick will come from. But we shouldn’t delude ourselves into thinking that nothing will be lost in the transition. Justice for and by the people necessarily must include all the people, beginning with fundamental considerations of representation. When we lose that, it’s incumbent for lawmakers — for all of us — to strive to get it back.

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