This interview was published a few months before I began employment at the New York office of the William Morris Agency — which had zero qualified African Americans and Hispanics Agents, Coordinators and/or Agent Trainees employed. Lewis has chosen to only read the factually inaccurate decisions of Arbitrator Gregory and has refused reading the various pleadings submitted by both parties in advance of our conference call. How can he expect to make any impartial decisions in my case if he doesn’t read these documents? He also refused to submit a notarized version of his Arbitrator’s Oath and in response to my objections, stated that he is “happy to proceed without [me] on the call scheduled for Tuesday.”  Very disturbing…especially when you consider that Lewis identifies himself as African American and has made comments below about the need for diversity in decisionmaking positions.

63-APR Disp. Resol. J. 20

Dispute Resolution Journal

February-April, 2008

Featured Article

Diversity

STRIVING FOR DIVERSITY IN ADR & WHY IT MATTERS: AN INTERVIEW WITH THE HON.TIMOTHY K. LEWIS

The Chairman of the AAA’s Diversity Committee Speaks Candidly about His Interest in Diversity in the Decision Making Professions, and Why Allowing Minorities and Women an Opportunity to Participate Is So Vitally Important

Copyright © 2008 by the American Arbitration Association

*22 DRJ: Please tell us a little about yourself.

JUDGE LEWIS: My name is Tim Lewis. I am a former U.S. Circuit Court judge and a former United States District Court judge. I served eight years on the Third Circuit. Before that, I was a judge on the U.S. District Court for the Western District of Pennsylvania. I am a native of Pittsburgh, Pa. I still live in Pittsburgh, but I now practice in the Washington D.C. office of the Philadelphia-based firm of Schnader, Harrison, Segal & Lewis, where I co-chair the appellate practice group and have a fairly wide-ranging practice that includes arbitration and mediation, commercial litigation, obviously appellate litigation, appellate consulting, and a great deal of pro bono work. I’m a member of the Board of Directors of the American Arbitration Association [AAA] and the International Institute for Conflict Prevention and Resolution [CPR], and serve on the Executive Committees of both. I am 53 years old and the father of two beautiful children.

DRJ: What accounts for your interest in diversity?

JUDGE LEWIS: My interest in diversity directly flows from my life experience as an African-American growing up during the civil rights era and the post-civil rights era, when women and people of color were finally seeing some opportunities open up in the private sector. Over a period of time, doors were opened, but they were opened slowly and often after they were opened, they were quickly closed.

It always seemed to me, as someone who grew up in a predominantly Jewish but fairly mixed community as a child and attended schools that were integrated, that we did our best–in whatever the “we” might be–when there were a number of different backgrounds, experiences and cultures to draw upon. America is diverse by its very nature. Public and private institutions, in my judgment, should reflect America. After all, pluralism and diversity represent the goodness and the richness of our country. And as institutions and individuals, we are all the better, all the stronger, for it.

And so I have always been committed to seeing to it that institutions that had kept their doors closed for so very long to women and to members of racial and ethnic minorities open their doors so that they and, through them, we all, can be improved.

DRJ: Do you see this as mainly an employment issue or a broader issue?

JUDGE LEWIS: It is to me a moral issue, an economic issue, and a broad societal issue. But it really is about our identity as Americans. You know, we live in a wonderful and diverse country. And the richness of this country is the result of an amalgam of cultures and classes and influences. There’s no doubt in my mind that we are able to realize the best within the public and private sectors from that same experience. I’ve not only seen it, I have personally lived it. So I know for a fact that that statement is true. So, it is more than an employment issue. In terms of private sector and corporate hiring, it’s about understanding the importance of inclusiveness in expanding the pool of available talent beyond its traditional limitations, while at the same time maintaining standards of excellence.

Within the legal profession, and in particular, within the realm of alternative dispute resolution, I came to this effort to help ensure further diversity because of a perceived sense that there was a dearth of representation among women and people of color serving as mediators and as arbitrators.

DRJ: Is that when you became associated with the CPR Diversity Committee?

JUDGE LEWIS: I serve on the Diversity Committees of both CPR and the AAA–I chair the AAA’s Committee–but I think it preceded even that. During the time that I served as a federal judge, I had opportunities to participate in the appointments of ADR specialists of one kind or another to help settle difficult cases. And there just weren’t very many people of color or women *23 around. I’m talking about court-annexed mediation. So I first became aware of it then. Of course, the same can be said about the profession that I was in at that time–the federal judging profession was sorely lacking in diversity. I was only the 12th African-American appointed to a U.S. Court of Appeals in this country since the Judiciary Act of 1789.

While it is true that President Clinton did a great deal to address and redress that issue, that problem nevertheless continues to be true and is true today– that within the decision-making professions, if you will, whether it is judging or arbitrating, in this country, there has historically been a lack of representation among women, African-Americans and other minorities.

When I left the bench, I became involved with CPR and the AAA. I had always been interested in ADR, from the time that I first went on the federal bench, back in 1991 when I was 36 years old. My interest flowed from the fact that I inherited a HUGE caseload of civil cases that I didn’t know anything about because I had only been a criminal lawyer and a U.S. attorney before then. And my job was to dispose of these 300 cases that I inherited the day I was sworn in. They were among the worst cases in the entire courthouse because at that time, the six judges with the biggest caseloads were each allowed to choose their 50 worst cases to give to the new judge.

They don’t do that any more, thank goodness. I got 300 old, seemingly unresolvable, horrible cases. And I thought, “You’re the youngest judge in the country and you are an African-American. A lot of people are whispering ridiculous things like, ‘He only got this because he’s black, and he’s too young to do the job.”’ And so I then and there decided that I needed to make a statement right out of the gate. So I decided to deal with all those cases and I did. The way that I did it was to settle most of them. I had never done that before. But I had to figure out interesting and creative means to resolve what seemed to be the unresolvable; to do what my colleagues who’d been on the bench 20, 30 years couldn’t do. And I did it! I did that in the course of one year, as I was elevated to the Third Circuit a year later.

Through that effort, I developed a strong interest in resolving difficult cases and the skills with which to do it. I took that with me when I left the bench, where it blossomed into a fascination with the ADR field. Did you have another question?

DRJ: Please go on.

JUDGE LEWIS: While I was on the Court of Appeals, I was allowed to hire three law clerks each year. I made the decision that my hiring was going to be based on the following standard–I was looking for very talented people who represented groups that had been historically excluded from active and meaningful participation in the federal judicial family. And that was my criteria for hiring. That didn’t mean that white men who did not fit the criteria need not apply. To the contrary, I hired several very talented white men who did a wonderful job and they remain friends of mine today.

But it meant that I was particularly interested in finding people I knew were unlikely to get hired in other chambers because of this barrier, as I’ve just explained it. So that is what I did, and my chambers and the Third Circuit Court of Appeals and the country were the better for it. The reason was that our chambers reflected different cultures and was a cauldron for interesting and new ideas when it came to looking at our cases, our approach to cases, and to decision making. While obviously the facts and the law certainly drove the decision in the cases, there are always cases that you can have different perspectives on, based on life experiences. So that’s what we did and that’s how I ran my chambers.

I saw an opportunity to try to elevate the ADR profession to some degree by focusing on diversity within that field after I left the bench.

The problem that we have is that it is very, very difficult for people of color, certain racial and ethnic minorities, and to a lesser but still important degree, women, to break into this field in a meaningful way. There are a number of reasons for that. Some of those reasons include what I consider to be historic and well-entrenched predispositions on the part of the people doing the hiring. I am specifically referring to CEOs, general counsel of major corporations and law firms to a large degree, and while there are a number of individuals in key corporate positions who have taken the lead in trying the ensure diversity *24 and equal access in this area, and while we have made considerable progress, there is still a long way to go and we are trying to take steps to deal with that.

DRJ: Are you purposely not using words like “prejudice” and “discrimination” because they are hot button words or are inflammatory?

JUDGE LEWIS: I am not purposely avoiding any of those words. There is absolutely no question that there is prejudice and discrimination, which still play roles in these decisions, and proof of that is an experience that one of our fellow board members, a general counsel, related to me. He was attending a meeting of general counsel from around the country and he recommended to the group–he happens to be white–“We ought to, as a group, pursue an effort to try to reach out to more African-Americans and women and people of color to serve as neutrals in our cases. We can do this and we should do this.” One of the general counsel raised his hand and said, “That sounds great. That’s all well and good, but what are we going to do about the drop-off in quality that’s going to result?” And if that wasn’t bad enough, my friend who had raised the issue was astonished to see most of the people in the room nod their heads in agreement.

So, there is a preconceived notion by a number of decision makers that to bring people of color into this process is to sacrifice quality. That is prejudice. That is prejudice that will result in discrimination. That is prejudging. That is quintessential prejudice. So of course it’s there.

But what I’m referring to is something more subtle than that. And it’s not overt and it’s not intentional and it’s not deliberate. I said that these are well-entrenched ideas that do not automatically give rise to an openness when it comes to hiring. It’s almost a sub-culture of predisposed thought processes. In other words, there’s a sense that is not as openly voiced as what this unfortunate gentleman stated at the corporate counsel meeting. It’s almost an ingrained skepticism, but it’s rooted in race. It’s “Are we going to be okay with this? Is this going to work?” But that would not necessarily be true with an equally qualified-on-paper, white male candidate.

These are facts. And as I have pointed out, there are a number of people sitting in decision-making positions who are working very hard to eradicate this ingrained fear, this closed-mindedness, the unenlightened view of the competence and ability of minority arbitrators and mediators. Some of them are on our [AAA] Board of Directors; some of them are on the [AAA] Diversity Committee. They have demonstrated a commitment to work toward equal access, which is all, I want to emphasize, all that we are asking for. That’s all we’re talking about. Equal access. Equal opportunity. We’re not talking about doing something to the exclusion of anyone else. We are talking about equal consideration. Getting one’s foot in the door in order to get appointments without the barriers that have persisted for so long. But we have a long way to go.

DRJ: It is always helpful when one can quantify differences. As a result of the diverse hiring when you were on the 3rd Circuit, was there any significant difference in the decision making?

JUDGE LEWIS: As President Bush is fond of saying, “I am the decider.” So the answer to that question is “no.” The ultimate decision was always mine and then the court’s. But in terms of the discussion and the nuances and the recognition of issues and so forth that go into the process of forming a decision, an informed judgment in that arena, there is no question but that the diverse backgrounds of the people with whom I surrounded myself and the court made a difference. No question about that. The clerks I hired were pretty smart people with diverse backgrounds. They had degrees from Yale, Harvard Law School and Michigan, as well as Penn and the University of Pittsburgh because we were located in Pittsburgh.

For example, I hired a woman, an African-American woman, a very progressive thinker, who graduated from Princeton. She received a *25 Masters Degree from the University of Berlin, a Ph.D. from somewhere else, and then went to Yale Law School. She may have worked with someone in my chambers who had a very different background and had followed a far more traditional route. For example, he or she might have been a very conservative person of color who worked her or his way through college and law school, or perhaps a white male from the south or mid-west. So within this realm of diverse interests and experiences, we had people coming from different points of view advising me. I took them all into consideration.

I’ll never forget a woman I hired my first year on the Third Circuit. She was from Chicago, an ardent feminist, and very active politically. We were having dinner in Philadelphia, talking about the cases and she asked me how things worked in chambers. I said, “Well, as a rule of thumb, what happens is …” when she interrupted me. “That’s a very sexist comment, ‘a rule of thumb,’ judge,” she said. “Excuse me?” I replied. She said, “Do you know the history of that comment? Do you understand where it came from? The rule of thumb, in an earlier era, was the measurement by which a man was allowed to beat his wife.”

Well, of course I wasn’t aware of this, but this discussion was an education for me. The whole thing was an education for me from day one until the time she left. She taught me that it’s okay for me to view myself as a feminist, too, even though I’m a man. It’s just about one’s views on equality. She’s now a very dear friend of mine.

It is enlightening. And that is a position where one hopes that the ultimate decision maker has an open mind and is going to continue to evolve intellectually. You can’t evolve intellectually unless you have people with fresh ideas and experiences and you are open to their different ideas and experiences. There is no more fertile territory for the evolution of intellectual thought than a diverse atmosphere in which to thrive.

DRJ: We often hear that achieving diversity will improve the quality of justice. Is that a perception or is it true?

JUDGE LEWIS: I can assure you that it is true.

DRJ: The Hon. Denny Chin, an Asian-American minority judge in the Southern District, wrote in a recent speech that a minority judge is going to apply the law in the same way that a majority judge would. How would that improve the quality of justice? Is it a perception that the decisions would be fairer or would it really improve the quality of decisions?

JUDGE LEWIS: The answer is “yes”–the quality of decisions will be better–and the reasons are nuanced.

Judge Chin is absolutely right. As I pointed out earlier, many if not most of the decisions that judges make are driven primarily by the facts and the law as they apply to a particular case. There’s really not much about life experience and so forth that directly has anything to do with that. But judges do often become involved in making decisions that require some life insight; that require one to bring a well-developed wisdom to whatever the best judgment under the given circumstances might be. That is often informed by life experience, and sometimes tempered by having experienced prejudice, or racism, or any form of discrimination. I’ve often said that in my opinion, a very important experience for a member of a majority culture to have is to be discriminated against. Just to see what it’s like, what it feels like. In that way you develop an empathy for those in *26 our society who are downtrodden, and an insight into the utter insanity of racist or sexist or any discriminatory thought. And anyone would have to turn a blind eye to reality to deny that we continue to be plagued by racism, sexism, and discrimination of various forms in our society. Discrimination continues to pollute the socioeconomic mainstream of this country in many, many ways.

I’ll give you an example of why I know that life experience can inform a judicial decision and why diversity is a very important part of that.

When I was on the Third Circuit, I authored an opinion in a Title VII hostile-environment appeal called Carol Aman versus Cort Furniture Company. Ms. Aman was appealing the district court’s grant of summary judgment against her and in favor of the furniture company. She was complaining that she had been harassed over a very long period of time, but the evidence in the case showed that there was no overt racism. There was never any use of the term “nigger.” I don’t use “the n-word”–the word is “nigger.” No one ever used that term in reference to her. Instead, they used the phrase “you people” and that sort of thing, but in the context of some other actions that appeared to reveal discrimination. There was nothing manifest, but there was a series of incidents from which inferences of discriminatory animus could be discerned. So the issue was whether racial code words were actionable under Title VII. The district court judge said, “No. We need more than that.”

I authored the opinion that overruled the district court and said that it absolutely was not true. I said that in today’s society, a would-be discriminator/employer who has become sufficiently sophisticated can use these code words to get around Title VII. It is our responsibility as judges to see through that and to work a little bit harder and to look behind what is going on to understand it.

Would I have necessarily known that, sensed that, felt that, understood that but for my own life experience and my experience as an African-American, having experienced things like racial profiling or people using code words to discriminate against me?

I don’t know. I do know one thing: It helped a great deal. I was quite certain, and in the course of making that decision, I helped educate some of my white colleagues on the panel (who had to agree with me in order to reach a majority decision) and the full court, which ultimately approved the opinion. That’s just one example. That actually represented a sea change in Title VII law. That decision has been cited throughout the country in a number of different contexts. But it stemmed from exactly what I am describing right now, a court that had sufficient diversity to allow for an informed decision in a discrimination case, not that diversity is only relevant to resolving discrimination disputes.

I think, in the end, the opportunity for everyone to serve helps to enhance decision making across the board and certainly in the area of arbitration and judicial decisions.

Continue reading →