Michigan Supreme Court Justice Elizabeth M. Welch currently serves as the Justice Liaison on data gathering and transparency in the civil, criminal, and juvenile justice systems. She co-chairs the Diversity Equity & Inclusion Commission, co-chairs the Justice for All Commission’s Data Workgroup, and serves on the Justice for All Commission’s Resource Workgroup.
Justice Elizabeth Welch and Judge Cynthia Stephens, Retired, sat down with ICLE to discuss the newest developments in diversity, equity, and inclusion (DEI) efforts within the Michigan judiciary and how the advent of the Commission on Diversity, Equity and Inclusion in the Michigan Judiciary (DEI Commission) will impact the Michigan legal system moving forward.
The Michigan Supreme Court officially issued an order appointing members to the new DEI Commission in June of 2022. Judge Stephens, could you first give us a brief overview of how we got to this point? What groundwork was done to lead to this landmark step?
Judge Stephens: In the 1980s, Michigan became one of the pioneering states in building a more equitable justice system. The Michigan Supreme Court Citizens’ Commission’s 1986 report concluded that over one-third of Michigan citizens believed the court system discriminated based on gender, race, and ethnic origin. In 1987, the Task Force on Gender Issues in the Courts and the Task Force on Racial/Ethnic Issues in the Courts were established. Among their many recommendations was one to create a commission to ameliorate the identified issues. However, it was not until January 2021, under Justice McCormack, that these issues were revisited through the creation of the Diversity, Equity, and Inclusion Committee, which echoed the Task Force’s original recommendation of establishing a commission. Subsequently, in January 2022, the Commission on Diversity, Equity, and Inclusion was born. Order No. 2022-1.
Justice Welch, one of the things you’ve said is that the judicial branch wants to learn from other sectors who are doing a better job in the diversity, equity, and inclusion space. Can you tell us more about which sectors you’ll be looking to, or talk about some examples of successes you’ve observed?
Justice Welch: There are many commendable DEI initiatives taking place across the country in other state court systems. In particular, New Jersey, New York, and Washington state have been at the forefront of this work. We can also look to the nonprofit sector, which has stepped up to do this work on the frontlines. The foundation world has also done extraordinary work, including those in Michigan, such as the Kellogg Foundation, the Kresge Foundation, the Skillman foundation, and the Mott foundation, to name a few. They are leading the charge through how they are doing their funding and what they are funding. Finally, the private sector is a great resource as more and more companies understand that it is not only the right thing to do but also the smart thing to do for business. A company like Gentex, for example, has been a leader in best practices on employment. There are a number of areas to look to and we don’t necessarily have to reinvent the wheel, but we can make changes to incorporate them into the judiciary.
Justice Welch, the DEI Commission is set to begin its strategic planning process in January of 2023, and I know that process will help narrow the commission’s focus. Some of the potential topics are geared at ensuring fairness and access to justice for those in the court system. Can you talk about some of the topics you think might be considered given work in other states and the groundwork that’s already been done in Michigan?
Justice Welch: The DEI committee spent a year studying these issues through various working groups. Among many of the issues to be addressed are:
- Staffing: Recruitment and retention of diverse staff within the court system in all positions, including who sits on the judiciary.
- Education: Ensuring that DEI principles are incorporated long-term into training and education programs.
- Data gathering and analysis: Establishing a centralized system of data collection and analysis to help inform the commission’s work and the decision-making process.
Judge Stephens, one thing that other jurisdictions have done is experiment with “anti-racist courtrooms.” Tell us more about what these courtrooms entail, and how they could help further this work.
Judge Stephens: Courtrooms throughout the country are beginning to look at anti-racist policies and making decisions with an eye toward the impact on DEI and belonging. For example, with the advent of satellite courtrooms, there is the question of where do you put it? Is it better by the bus station or in a field? In transitioning back to in-person proceedings, we already know that Zoom courtrooms have helped increase access to the courts for those who struggle with transportation and childcare. Washington state is looking at how it explains the law to its jurors; should jurors be reminded about implicit biases? When we look at questions of pretrial release, have we created a paradigm, some courts have asked, that presumes that if you are poor and if you move a lot, you are unlikely to return to court? To that end, many states have reduced or eliminated cash bail. In sum, there are efforts going on in many different ways around the country, creating a giant United States laboratory.
Justice Welch, many of those who work in this space know about the importance of pipeline programs. Could you speak about what might be done to improve pipelines to judgeships to ensure a representative and diverse Michigan judiciary?
Justice Welch: There are many groups on a national level working hard to encourage people to step forward and run or be considered for judicial appointment. However, that entails a lot of preparation, support, and resources, including knowledge about finances and campaigning strategies. This can be quite daunting, and mentorship is essential to encourage individuals to step forward. With respect to diversity in the Michigan judiciary, great headway has been made in the last few years, and we should continue to build on that. These efforts are not only important for judges, but also for clerk’s offices and court staff, emphasizing the need to incorporate DEI principles into hiring practices and applicant pools.
Judge Stephens, I understand that DEI education requirements for judges may be considered going forward. Can you tell us more about what that could involve based on other states’ approaches?
Judge Stephens: In the next few years, Michigan is likely to have a drastic turnover in the judiciary due to age limitations, which presents an opportunity for incorporating DEI principles into the orientation process for new judges. Looking at things such as factors that are predictors of success for probation, factors that are predictors for persons returning to court, and asking what are our biases, we also have to look at DEI and DEI training relative to some of the groups that have decision-making power as to who becomes our judges and court administrators. The State Bar of Michigan is actively recruiting on an annual basis for the judicial qualifications committee. Some states require DEI training for those involved in the judicial qualifications committee to recognize personal biases relative to how we perceive judges or future judges. New York is a great example of this work, their revitalized commission looks at recruiting, retention, and promotion as well as judicial discipline and the intersection between disciplinary action and DEI.
Justice Welch, one of the first tasks for the DEI Commission is to work on a strategic plan. Tell us about what that process will look like, and what the first steps will be.
Justice Welch: This will be a massive undertaking implicating the entire third branch of government, which is why we have a very capable strategic planner. The commission will convene at the end of January in the Hall of Justice and proceed to meet on a monthly basis. This year will mainly be a planning year, and much of the work will be done through individual working groups.
Judge Stephens, can you talk a little bit about what these judicial initiatives mean for the broader legal community, and what steps Michigan lawyers can be taking to ensure their future practice aligns with the Michigan judiciary’s goals?
Judge Stephens: The commission is actually responding to lawyers. Many local bar associations such as in southeast Michigan and Ottawa and Cass counties are involved in DEI initiatives, whether focusing on Native American communities or work being done in local schools and law schools. The commission is a response to how Michigan lawyers are practicing. We will learn from what is being developed in the laboratory of each county and each court. We have received tremendous responses from local bar associations and social justice organizations, such as the Kellogg Foundation and NAACP.
Justice Welch, what can Michigan attorneys who are interested in the DEI Commission’s work do to get involved?
Justice Welch: I would encourage Michigan attorneys to look to their local bar and connect to the work that is being done locally. You can also email firstname.lastname@example.org to be connected to potential opportunities with the commission. Self-education through reading is integral to this work on the individual level. Some great books include The Color of the Law by Richard Rothstein and Extending Justice: Strategies to Increase Inclusion and Reduce Bias by Judge Bernice Donald from the Sixth Circuit. Court Administrator Zenell Brown is also always sharing great resources on LinkedIn.