Interview with Judge Dhanidina Part I: Dissent and Diversity in the California Courtroom

The Honorable Halim Dhanidina is a Los Angeles County Superior Court Judge, currently assigned to hear criminal cases in the Long Beach Superior Court. A Pomona College and UCLA School of Law graduate, Judge Dhanidina is the first Muslim judge appointed in California. As a Judge, he is known for promoting diversity in the court system and criticizing the sting operations by the LBPD that targeted the LGBTQ community in April 2016. Prior to his position as a Judge, Dhanidina had served as a deputy district attorney in the Los Angeles County District Attorney’s Office since 1998 and had prosecuted cases for the elite Hardcore Gang and Major Crimes Divisions.

On February 15th, the Claremont Journal of Law and Public Policy hosted Judge Dhanidina for an exclusive interview with the CJLPP and a series of events, including a talk at the Athenaeum titled “Dissent in Democracy.” At the talk, Judge Dhanidina offered insights on how dissents are an integral part of democracy and how they help to improve the credibility of our political system.

 

CJLPP: “Your talk today is about “the crucial role that dissent plays in all aspects of democratic life.” Do you think that many people recognize this crucial role, or do you think it is an issue that is underestimated and under discussed today?”

Dhanidina: “Well, I think sometimes people take it for granted. You don’t realize how important it is until you start to lose that ability and that right. I think part of the problem is that people tend to see dissent as symptomatic of something that is going wrong in society, but I think it is probably the opposite. To me, I feel that when people feel free to express themselves, that’s when you know that things are working. But most people think it’s the opposite.”

 

CJLPP: “Do you think all forms of dissents are equally important, or do you think there are certain types of dissent that are more important than others?”

Dhanidina: “I think there are two main functions that dissent can play. One is a persuasive function, and one is an expressive function. Both are equally valid and important to a healthy society. So, when you talk about persuasion, the form of dissent matters because you can be a lot more persuasive based on the methods that you choose to express yourself and to get people onboard with your point of view. Therefore, I believe there are definitely ways that you can be more constructive, and civil discourse is never a bad thing regardless of what you are trying to express. But I think it’s easier to be more persuasive when your message is delivered in a way that is more easily digestible. Now, that’s easier said and done. Sometimes in a polarized society, you can’t always persuade someone if they are closed off to what you are thinking. So it is sort of a two-way street there. As far as being able to express yourself, I think there are few limitations on what types of dissent should be allowed. It won’t matter if you are turning off your audience, because it is really not about your audience. It’s about yourself.”

 

CJLPP: “Where do you see dissent in the judicial decision-making process? How have you encountered dissent throughout your career as a judge?”

Dhanidina: “The role of dissent is actually baked into the judicial decision-making process. Everything happening in court will have two sides represented, so you will always hear arguments and counterarguments. There will always be a winner and a loser. What’s crucial in the judicial process is that both sides have an equal chance to be heard, to make their case, and to persuade. Whether that’s in front of a jury or the judge, both sides have the opportunity to express themselves or disagree with each other, and even with the judge. That’s what’s considered part of due process. If that were ever removed, we wouldn’t have a judicial system like the one that we do. That is what lends credibility to the system. You want people to feel that even though they don’t get what they want—and half the people don’t get what they want in court—the system is still credible because it is still listening and still considering your ideas and your point of view, even it is not eventually adopted. That’s at the trial level.

At the appellate level, it’s more interesting because there is the dissent that we talked about, [and then there is] the dissent among judges. So you could have a panel of judges where they are not always unanimous, and that’s not uncommon at the various levels of the appellate process. At these levels, the form of dissent is actually formalized in terms of the way it gets expressed. So, if I am a judge on the panel with other judges, and the majority find one way, I have the ability and the right—and, some would say, even a duty—to express my dissenting opinion in a written form. If some of you are going to law school, when you are reading a case, you are going to be reading an opinion from the majority. But, you could also oftentimes read [the opinions] from the judges who disagree with the majority. That, I think, also lends credibility to the judicial process, because it doesn’t give the false impression that there is a consensus on a particular issue. And, therefore, for people who are subject to judicial decisions and for people who are reading the decisions, they will know that even if [they] disagree with the majority, there is a voice for [them] being expressed by one or more members of the court.”

 

CJLPP: “If I am understanding you correctly, you are suggesting that dissent is what makes the judicial process credible?

Dhanidina: “I think so. In a democracy, so much of our institutions rely on public confidence. Once we start to lose the credibility [in the eyes of] the public, then institutions don’t mean anything any more. It’s like, if we have free elections, that’s great. But if nobody is voting, then [we will question] how democratic this society [actually is]. It’s kind of the same thing. The judicial process requires a certain amount of confidence by members of the public and by the people who use those institutions.”

 

CJLPP: “On a different topic, the lack of diversity is an issue in the legal profession as a whole, especially among judges. In 2012, you became the first Muslim judge in California. Why do you think diversity is so important to have in the legal profession and legal system?

Dhanidina: “It’s actually the same topic—I think diversity in legal profession is actually a big component of the credibility of the system and public confidence. Imagine if you are a litigant, coming into a system where you are going to be judged on your dispute that is to be resolved. And [imagine that] all the people making the decision were from a background that you couldn’t relate to, and they perhaps could not relate to you either. Whether or not the decision was a legally correct one, there will always be that thought in the back of your mind that there is some bias involved.

Something we now know about bias is that it is usually subconscious or implicit. Even when the judicial decision-maker, being the jury or the judge, acts in good faith, they might still have a bias based on their inability to understand the background, the position, or the point of view of the people who are in front of them. One of the major ways you can remedy that, I think, is by making sure that there is diversity in the process, covering all forms of diversity, such as socioeconomic, racial, religious, and geographic diversity. It is interesting that when you study the Supreme Court, you learn that this is the court that is making decisions for everybody. In some ways, you look at the Court [and] you [could think] that this Court is probably more diverse as it had been, as far as different genders and racial backgrounds being represented. But in some ways, it is not that diverse of a court when you think [about how] the overwhelming majority of the judges went to the exact same law school, and took the same classes from the same professors. That doesn’t really help them see the world in a different way, even though they oftentimes do. So I think diversity is important not only because it leads to different points of view in the court system, but also because it makes the people who use the system feel more comfortable that their decisions are being handled irrespective of their identities.”

 

CJLPP: “You said that a lot of the bias that occurs today is subconscious. I am wondering if there are strategies you employ in your home courtroom to check your own biases? And if biases come into play, how do you deal with that?”

Dhanidina: “That’s a really good question, because you have to ask yourself, ‘how do I handle something that I am not aware of?’ Being a judge in California, I feel very fortunate because a lot of the training that we get when we first become judges focuses on this very issue. Even in the continuing education of judges, we are constantly taking courses on bias. In fact, it is required on an ongoing basis to help us to at least be aware of this issue. As far as what [judges like me] can actively do, there are few different tools that can be used.

One is that, when there is a fact pattern in front of you, and you are thinking of yourself leaning towards one decision over the other, imagining [and asking yourself], ‘how would I make this decision if the identities of the parties were different? Is that relevant for some reason? Am I thinking the sentence should be more severe or less severe because of identity issues versus something else?’ Part of what helps that is that I am in a very high-volume court, and so I might see a lot of very similar fact patterns, all in a row, involving people from different backgrounds. Little [warning] flashes will start to go [off] inside my head if I start to see one case as different from the previous one. I have to ask myself why [that is occurring]. The courtroom setting also helps to keep me in check, because the parties in the public courtroom can see how I make my decisions, and whether there is any arbitrariness to it.

One of the things that I also force myself to do is a funny trick that I don’t think a lot of people do. I have a difficult name for some people to say. Oftentimes, we avoid [using] someone’s name when it is difficult to say. There is a lot of shorthand used to avoid saying names that we don’t feel comfortable saying—but that matters in a courtroom. When I was a prosecutor, judges were notorious [for avoiding saying my name and instead,] using shorthand to refer to me as ‘counsel’, or ‘counsel for the People’, so that they never had to say it. With the parties standing in front of you [as a judge], you could use the shorthand [as well]: the witnesses, the defendant. I could do that, but I don’t allow myself to do so because I think part of what dignifies people in the process is some acknowledgement of their individuality and their own diversity. Long Beach, where I sit, is a very diverse community. I will always give my best effort to say a name, even [if] it looks like it is going to be hard. To me, this is a very conscious effort, because I want everyone to feel that that they are welcomed in the courtroom, and that this is not a courtroom just for people who are from one background. If a judge doesn’t pay much effort in learning your name, it doesn’t seem like that judge would pay the appropriate amount of time focusing on your case. So I never want to send out that message.”

 

CJLPP: “What advice do you have for students and young professionals seeking to become a legal professional or judge? What do you think would be the best solution(s) to solving the legal field’s diversity problem?”

Dhanidina: “One of the ways I think students can make their way through the process is to make conscious choices when they get involved in some of these professions—law being one of them—where they could learn that some of the voices might not be heard and represented. The reason for lack of diversity in legal professions is oftentimes double-sided. It would have to do with the gatekeepers: people who are letting people into the profession. But it would also have to do with the decision of the people who work to avoid the profession altogether. When I was growing up, if you were a South-Asian, like I am, and from an immigrant family, you probably were raised to do really, really well in school so that you could go into a career in medicine or engineering. Sometimes, those decisions were made for us by our families, and there would be a lot of pressure to do that based on what value system is at play. That will prevent a lot of people, similarly situated, from going into law, because it’s something that is never introduced to them. Part of that has also to do with who has gone on before you. There was a time when I was growing up that I couldn’t identity one lawyer that my family knew of, so it was hard for me to see myself in that profession. Still, I think my parents did a good job of instilling in me this idea that I really could do whatever I wanted. But I think it’s a harder sell when you can’t see anyone who is like you or relates to you doing the things you want to do. So finding either a mentor who is active in your decision-making process or even a role-model whom you really want to become one day is what students can do for themselves to make a conscious decision when choosing a career. These people would also provide guidance or leadership once the student arrives in that profession.”

 

CJLPP: “On the topic of bias in the courtroom, do you think the situation has changed a little bit following President Trump’s coming into place?”

Dhanidina: “Well, I can’t make any public comment on any political issue, but irrespective of the presidency, I will say that the situation has changed over time for the better. Again, keep in mind that I’m in the California state system. So we have the leadership of our current Governor Brown. He’s made it a priority to diversify the bench. And so if you look at newly appointed judges versus judges who’ve been around for a long time, they will look different to you. Again, part of that’s because different populations are going to law school and preparing for those jobs, and part of it is also the conscious effort on the part of the people making the appointments to try to diversify [the bench]. The newer generation is, I think, more open to the idea of implicit bias and is more open to and more comfortable in the context where there’s many different people and many different backgrounds. It doesn’t make them uncomfortable or unsettled in any way. And I think as a result the justice system has been more responsive in ways to certain underrepresented communities than it has in the past. That’s not to say that it’s obviously perfect, because it’s an ongoing process I think, just with the passage of time. But, most people involved in the justice system–I’ve been in the court since 1998–will tell you that it’s a noticeable difference.”

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