The Volokh Conspiracy

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Cancelling Portraits of White Judges in Fairfax County Courtroom

"The Court is concerned the portraits may serve as unintended but implicit symbols that suggest the courtroom may be a place historically administered by whites for whites, and that thus others are of a lesser standing in the dispensing of justice."


Generally, a judge's service to a court is recognized with the hanging of a portrait. It is a huge honor. Judge Kim Gibson, the federal district judge I clerked, who previously served on the state bench in Somerset, Pennsylvania. I vividly remember attending his portrait ceremony. His daughter, an artist, painted it. Judge hadn't seen the work before the ceremony. When they pulled the curtain, his face lit up. Judge's family and friends were in the courtroom, and they were beaming with pride. I imagine other judges, and clerks, have had similar experiences.

Fortunately, Judge Gibson didn't serve on the Fairfax County Circuit Court. If he did, his portrait would be removed, at least temporarily. The Washington Post reports:

A Fairfax County judge has ruled that a Black defendant can't get a fair trial in a courtroom decorated overwhelmingly with portraits of White judges and has ordered the paintings to be removed for the man's upcoming legal proceeding.

Fairfax County Circuit Court Judge David Bernhard wrote in an opinion issued late Monday that the portraits of past judges from the Fairfax County Circuit Court could create the impression that the court is biased. Bernhard wrote that he won't allow any portraits to be on display for any trial he presides over.

Judge Bernard's opinion begins:

The Court has before it the question whether it should permit a jury trial to take place in a courtroom gilded with portraits of jurists, particularly when they are overwhelmingly of white individuals peering down on an African American defendant whose liberty is the object of adjudication in this cause. At issue is not the narrow inquiry whether the portraits depict judges who have exhibited overt personal racial animus towards African Americans. Rather, the broader concern is whether in a justice system where criminal defendants are disproportionately of color and judges disproportionately white, it is appropriate for the symbols that ornament the hallowed courtrooms of justice to favor a particular race or color. Evaluation of this matter is left at present to the sound discretion of each presiding judge. There may be contrary views holding the dignity of the Court process is not offended by celebrating the service of prior judges with display of their portraits. However, in weighing the interests of honoring past colleagues against the right of a defendant to a fair trial, the Court is concerned the portraits may serve as unintended but implicit symbols that suggest the courtroom may be a place historically administered by whites for whites, and that others are thus of lesser standing in the dispensing of justice. The Defendant's constitutional right to a fair jury trial stands paramount over the countervailing interest of paying homage to the tradition of adorning courtrooms with portraits that honor past jurists.

Consequently, the jury trial of the Defendant, and of any other defendant tried before the undersigned judge, shall henceforth proceed in a courtroom devoid of portraits in the furtherance of justice.

Judge Bernhard defended his decision, in part, on the court's recent adoption of "Initial Plan of Action to Address Systemic Racism and Enhance Civic Engagement With Our Community."

As it concerns the question herein presented, the third point of this Court's nine- point Initial Plan of Action states as follows: "Identify whether there are symbols in the courthouse and courthouse grounds that carry implications of racism, such as public displays of historical figures who have demonstrated racial hostility." The prevalence of portraits of white judges in the courtrooms of the Fairfax Circuit Court, which constitute some forty-five (45) out of forty-seven (47) individuals, while not emblematic of racism on the part of presiding judges, certainly highlights that until the more recent historical past, African Americans were not extended an encouraging hand to stand as judicial candidates.

Judge Bernhard states that the portraits serve only to promote a sense of nostalgia:

The portraits in sum, are of benefit to only a few insiders who might fondly remember appearing before a particular judge or to a retired judge's family making a rare visit to the courthouse. To the public seeking justice inside the courtrooms, thus, the sea of portraits of white judges can at best yield indifference, and at worst, logically, a lack of confidence that the judiciary is there to preside equally no matter the race of the participants.

Maybe the portraits can be displayed in a museums, to provide proper context. Soon enough, portraits in law school buildings will also have to come down.

If Judge Bernhard is correct, could an African-American defendant previously convicted in that courtroom file a motion to set aside his conviction, on the ground that trial was inherently biased?

This movement was never going to stop with cancelling confederate statues, or even references to slaveholders. No one will survive the purges. See my previous posts on cancelling John Marshall, Melville Fuller, James Birney, Robert Jackson, John Marshall again, Dianne Feinstein, and all slavery-related decisions.