In other countries, students can go to law school to become lawyers, or they can take a separate educational track and go to judge school to become judges. This strikes our ears as odd because in our common law tradition, judges are not created separately from lawyers, but actually are lawyers chosen to transition orthogonally from the advocates’ side to the neutral side of the bench. Indeed, in California, the minimum requirement to be a judge is to have been a lawyer for at least ten years. Cal. Const. art. VI, § 15.
But does practicing law (hopefully as a litigator) for a decade (or more) really prepare someone to be a judge? We expect lawyers to be zealous advocates, taking sides and pushing boundaries. Although lawyers need to see both sides of a case, litigators are professionally required to be heavily biased in favor of their client’s interests. In contrast, judges are to be fair, neutral, and unbiased. See Cal. Code of Judicial Ethics, canon 3B(5) (“A judge shall perform judicial duties without bias or prejudice.”); Cal. Standards of Judicial Administration, standard 10.20. How can someone go from spending years slanting disputes in favor of one side and then suddenly put aside that mindset entirely and become evenhanded?
Some people may be born with a highly developed sense of objectivity and fairness. Yet we would never rely solely on whatever ideas about fairness a person may have to simply trust that they would be good or fair judges. For that matter, we would never simply assume that even a fantastic lawyer in practice would be ready at the drop of a hat (or the call of a governor) to instantly be prepared to handle civil, criminal, family, probate, juvenile, and every other sort of case that can be put at issue in a courtroom. Thus, we assume that there must be some form of judicial education, and most lawyers have a vague idea that “judge school” exists somewhere out there (Reno?).
Enter CJER, the Center for Judicial Education and Research. Formed in 1973, CJER was a joint venture between California’s Judicial Council and the California Judges Association. In the beginning, CJER’s mission was to provide a statewide curriculum for both new and experienced judges. In 1993, CJER became part of the Judicial Council as an office within the agency itself. Its mission was expanded beyond judicial education to include educational training for all court personnel statewide.
One of many thoughts that crosses the mind of someone upon becoming a judge is probably something like “thank goodness I don’t need to worry about MCLE anymore!” But no, not so fast. Judges do have Continuing Judicial Educational requirements. CJER oversees that, striving to ensure that judges have the education to perform their duties competently, efficiently, and fairly.
Lawyers have no need to be familiar with the Title 10 of the California Rules of Court, governing judicial administration. But Division 2, chapter 7 of that title concerns minimum educational requirements, expectations, and recommendations. Rule 10.451(a) explains that “Judicial branch education for all justices, judges, subordinate judicial officers, and court personnel is essential to enhance the fair, effective, and efficient administration of justice” and that judicial education is vital to Judicial Council’s goals of “access, fairness, diversity and inclusion … and quality of justice and service to the public.” Appellate nerds reading this column may be interested in Rule 10.461, which set forth the minimum educational requirements for Supreme Court and Court of Appeal justices, including 30 hours of CJE every three years. (In accord with all things appellate, Rule 10.461(d) is an “extension of time” provision!) See also Rules 10.471, 10.472 (rules for appellate clerks/executive officers and for Court of Appeal personnel.
The Judicial Council has tasked the CJER Advisory Committee with overseeing education for judicial officers and court personnel. The CJER Advisory Committee, in turn, oversees curriculum committees that ensure content is created in nine categories. Five categories are substantive, and you can probably guess what they are: civil law, criminal law, family law, juvenile law, and probate law. Two categories are procedural: trial court operations and appellate practice. And two categories relate to the judicial branch itself: leadership development and access, ethics and fairness. It’s that last point that is the focus of this article. What can CJER do to train judges on fairness?
First, consider what CJER has already done. Building on over 25 years of education expertise in the areas of social cognition, fairness, and antibias, CJER already has a large library of materials and programs.
Since the 1990s, new judge orientation has included education on social cognition theory, a precursor to today’s discussion of unconscious bias and implicit bias. New Judge/New Appellate Justice Orientation programs are mandatory for all judges and intensively focus on transitioning former advocates into neutral arbiters, with an emphasis on judicial ethics, demeanor, social cognition and implicit bias. New judges must also attend a two-week Judicial College, and an orientation course in their primary assignment. Both programs include ethics and fairness content.
Experienced judges also regularly receive continuing education in ethics and fairness, including antibias. Implicit bias and anti-harassment training are core components of the Qualifying Ethics program for judicial officers. Virtually all judicial officers in the state participate in this program, which provides insurance in case they are the subject of Commission on Judicial Performance proceedings. To qualify for coverage, judicial officers must complete the three-hour Qualifying Ethics Core course and at least two hours of ethics elective education every three years. Ethics and fairness content is integrated in most course offerings for experienced judicial officers, and multiple stand-alone course offerings are also available. Recent course offerings for appellate justices, for example, have focused on the Racial Justice Act, bias and incivility, and sexual harassment prevention. Ethics programs for appellate court research attorneys have included sessions on identifying and overcoming implicit bias, ethical considerations in the use of social media, human rights, and immigration issues in state courts.
Additionally, a rich array of education which focuses exclusively on implicit bias and fairness is available on CJER Online, the password-protected Judicial Council website dedicated to judicial branch education. This includes about 50 distance education products on these subjects—videos, recorded webinars, and podcasts—as well as job aids and other materials. For example, a video series titled Continuing the Dialogue explores issues of California’s diverse population that affect judicial branch employees, including unconscious bias, gender, disabilities, and race. Episodes address redlining, the Oscar Grant and Trayvon Martin cases, the Indian Civil Rights Act, the Mendez v. Westminster School District case, and the Fred Korematsu story. This series provides opportunities for judicial branch employees to learn about different perspectives as well as explore and discuss issues and topics that impact them and the people who use the courts. Additional videos that focus on bias specifically include titles such as Social Media, Ethics and Bias, Courtroom Control: Addressing Bias, Unconscious Demotion, Managing Bias, Making Courts Fair and Accessible to Transgender People, Elimination of Bias for Research Attorneys, and Overcoming Implicit Bias; Guidance for Court Personnel.
Next, consider how swiftly CJER can react to educational needs changes prompted by the law, society, or the work of the courts. CJER has the resources to produce over 130 instructor-led courses each year as well as develop 50 distance education products each year.
Thus, for example, in 2019 the governor signed legislation effective 2020 to amend Government Code section 68088 to authorize the Judicial Council to develop training on implicit bias. (Effective 2022, all court staff who interact with the public must obtain two hours of implicit bias training every two years (Gov. Code § 68088(b)(2).) Within a short period of time CJER created and posted on CJER Online a depository of educational resources available to judicial officers and court personnel.
Effective January 2021, Rule 10.469(e)(2) requires all judges to routinely participate in education on unconscious bias and anti-discrimination. And CJER is there to provide the resources to accomplish this.
As noted in this column’s October 2023 installment, Queasy as ABC (Appellate Bias Committee), there now exists a Supreme Court and Court of Appeal Bias Prevention Committee. That committee, now a year old, has a mission statement that includes supporting “the integrity and impartiality of the judicial system” and promoting “an appellate court environment free of bias and the appearance of bias.” A big part of fulfilling that mission is ensuring that justices have appropriate educational resources to understand bias and fairness. And a big part of that task is met by the enormous resources and work of CJER. California is already blessed with an outstanding judicial education agency, which is considered the nationwide leader in this area. If the Bias Prevention Committee had to create an education arm from scratch, it couldn’t do any better than CJER. This may be old news to California judges, but it’s unfortunate that the broader practicing bar generally has no idea that CJER even exists. This article hopes to remedy that situation.
Reprinted with permission from Daily Journal.
