Judge David Bernhard is a lawyer in Fairfax County (where I live) and has issued a controversial order requiring white judge portraits to be removed from a courtroom because their presence would prevent a black defendant from going to a fair trial. In a decision applauded in the Washington Post, Bernhard stated that a fair trial is being threatened in “a courtroom gilded with … white people looking down on an African-American defendant”.
The defense attorney filed an “application for the removal of portraits in which white lawyers hanging in the courtroom are predominantly depicted”. The motion was not denied by Steve Descano, the newly elected Fairfax County attorney, whom the Washington Post identified as one of several recently elected liberal prosecutors across the country.
Bernhard Orden explains:
The low hanging fruits of overt racism can be easily identified and picked up to strengthen the tree of society. The more conventional symbols that convey tradition to some and subtle oppression to others are less conveniently addressed. The ubiquitous portraits of white judges are such symbols. When they were hung in the recent past, negative connotations didn’t matter. For the general public who use the courthouse, other than a few attorneys who may have appeared before the judges portrayed, there is no context in which to learn who is pictured. The total portraits benefit few insiders who fondly recall appearing before a particular judge or the family of a retired judge who rarely visited the courthouse. For the public seeking justice in the courtrooms, the sea of portraits of white judges can, at best, provoke indifference, and at worst, logically, a lack of confidence that the judiciary will preside equally regardless of race.
We previously discussed the removal of academic portraits and even images of leading writers like Shakespeare on analogous grounds.
Judge Bernhard should be credited with attempting to address concerns about racial justice and inequality. However, I disagree with this decision as I have removed academic portraits. We thankfully achieve a greater diversity in our dishes and in our faculties. This is reflected in such honorary portraits. However, the removal of portraits not because of their records but because of their race is worrying.
I certainly agree that in the Commonwealth v. Shipp case, “the defendant’s constitutional right to a fair trial is paramount”. The problem is Bernhard’s juxtaposition of fair trial with “the opposing interest in decorating courtrooms with portraits honoring former lawyers” who are “predominantly … white individuals”. I do not agree that the mere fact that the portraits show white lawyers is a message that black people are “of inferior rank”.
According to Bernhard’s logic, leading lawyers fighting slavery and segregation would be removed because of their race. Hence, Earl Warren, who wrote Brown against Board of Education, had to be removed because he was white. The irony crushes. Warren wrote this:
“To separate [black children] from others of similar ages and qualifications, solely because of their race, creates a sense of inferiority to their status in the community that can affect their hearts and minds in ways that are likely never to be undone. “
However, under Judge Bernhard’s approach, Warren’s portrait would have to be removed, as his picture would evoke the same “feeling of inferiority” because he happened to be white.
While Judge Bernhard calls the portraits “ornaments,” the use of race-based criteria for their removal is so disturbing and, in my view, misguided.