Former U.S. Secretary of Homeland Security Jeh Johnson Discusses the Barriers to Racial Equity in the Court System

By Matthew Krumholtz

Jeh Johnson

Jeh Johnson, former U.S. Secretary of Homeland Security, believes the findings of his recent independent review of the New York State Court System and its response to systemic racism should be considered within the wider national history of racial violence that erupted recently in the insurrection at the U.S. Capitol.

“The harsh reality, which became stark and clear on Jan. 6th when we saw an insurrection on the U.S. Capitol, is that there exists in our society now and for the entire span of my father’s life, a strand of America that is racist, that is intolerant, that is prone to conspiracy theories, suspicion, prejudice and violence,” Johnson said.

Johnson, whose father passed away on Jan. 27th at the age of 89, shared his dad’s life story as a lens for viewing the systemic racism that his report was commissioned to address.

“He saw much social change, from Jim Crow segregation to integration,” said Johnson.“But when my father passed away the other night, at the moment he gave his last breath, he left a nation that is bitterly divided right now, along racial, cultural, and class and political lines.”

Johnson shared his remarks as the keynote speaker for the New York State Bar Association’s Judicial Section virtual lunch on Jan. 29th. He emphasized that there exists in New York two systems of justice –– one for litigants of color and another where lawyers from firms like Paul, Weiss, where Johnson is a partner, appear.

“Frankly, I was somewhat surprised to learn, but not really surprised, that the Williams Commission of 1991 observed and said almost exactly the same thing thirty years before,” Johnson said.

The Franklin H. Williams Judicial Commission was formed in 1988 to conduct a comprehensive study on minority participation on the Unified Court System workforce as well as racial bias in the courts. At the virtual lunch, the Williams Commission received the Advancement of Judicial Diversity Award, in recognition of individuals promoting diversity and inclusion at all levels of the judiciary.

Johnson made clear that he believes racism presents a growing threat to the U.S. and that we all have a role to play in combatting it.

“This group that is bigoted, is racist, hates, and is prone to violence is out in the open and feels emboldened to reveal its hatred and its prejudice,” said Johnson. “Frankly that was, I believe, the catalyst for Judge DiFiore calling me on June 8th.”

Chief Judge Janet DiFiore appointed Johnson to conduct the review of the state court system’s response to institutional racism in the aftermath of the murder of George Floyd while in police custody in Minnesota.

“When Judge DiFiore called me and asked me to take this on, it was actually the same day that the Secretary of the Army called me and asked me to chair a commission that would study removing the names of Confederate generals off of army bases in the South,” said Johnson. “I took the easier assignment and decided to study the New York State Court system.”

In October of 2020, Johnson issued a 100-page public report recommending a number of changes including instituting a “zero tolerance” policy for discrimination, enhancing sensitivity training for judicial and non-judicial personnel and assigning an independent monitor to evaluate progress.

“Our renewed commitment to equal justice is something that gives me hope,” said Hon. Rolando T. Acosta, presiding justice of the Appellate Division, First Department, and Secretary Johnson’s law school classmate at Columbia Law School. “Secretary Johnson’s report was eye-opening to me to say the least.”

Johnson offered recommendations in his remarks for what judges can do moving forward to root out racism in their court rooms.

“Attitudes toward litigants of color, toward lawyers of color, attitudes in dispensing justice can be addressed through sensitivity training,” said Johnson. “Judges, I believe, need to check the intolerance and hostility and uncivil behavior by court employees that exists and occurs in their court rooms.”

Johnson also stressed his view that leadership is crucially important in eliminating systemic racism, especially for public officials. “If a leader engages in misbehavior, it makes misbehavior acceptable and tolerable for all the rest of us, and words do matter. If you have the biggest bullhorn in America, and you call for an insurrection, you’re going to get an insurrection.”

Judge DiFiore has committed to follow all the recommendations outlined in Johnson’s report.

“Commission recommendations are like a vaccine: they only help if you inject them into the system,” said Justice Acosta.

 

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