Are Paintings of Dead White Judges Racist? (Update)

There are big issues, huge issues, that demand redress for defendants to get a fair trial. The portraits on the wall aren’t one of them.

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.

Courthouses and courtrooms have long been designed to reflect the “majesty” of the law and the seriousness of the proceedings. Whether that’s the right message is a matter of fair debate, although few would argue that the law should be used unseriously. Having portraits of judges on the wall is more a matter of decorating choice and local perks. Some places honor former judges with portraits. Others, not so much. They tend to look unduly stern and a bit scary because they want to appear to be very serious judges. Whether those faces belong in courtrooms or restrooms is another matter.

But if they are hung in courtrooms, does that have anything to do with a defendant receiving a fair trial? Or more to the point, do portraits of white judges mean a black defendant will be prejudiced?

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. 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.

There is no question but that the defendant’s constitutional right to a fair trial is far more important than how a courtroom is decorated. But there is a question as to what Judge Bernhard is talking about when he considers that paintings of old judges are “implicit symbols that suggest the courtroom may be a place historically administered by whites for whites.” Even removing his three wiggle words from that one sentence leaves a blatantly nonsensical and flagrantly racist assertion, that law is “administered by whites for whites.”

Even though black people are “disproportionately” defendants, they are not the majority of defendants. The meaning of the word “disproportionately” keeps getting lost somehow. It means more than what might be expected given that black people are only 13% of the population, and therefore should only be 13% of criminal defendants. And they’re not. But that doesn’t make them the majority of defendants, just more than the percentage they should be, all things being equal. And then there’s the question of whether ceteris paribus applies, an inconvenient notion honored in the breach.

Courtrooms have been the place where some of the greatest victories over racial discrimination occurred. Brown v. Board of Education didn’t happen in Congress, but in a courtroom. Yes, Plessy did too, but that’s the point, that it changed in a courtroom, just as did Loving v. Virginia, Miranda, Escobedo and so many others. Clarence Gideon may have been a white man, but what came of his case has helped every defendant no matter their race.

If Judge Bernhard doesn’t like the way his courtroom is decorated, with paintings of old white judges lining the walls, and wants to be rid of them, that’s his business. Some people like tradition while others prefer their courtrooms to be more modern. Maybe those wood-paneled walls don’t work for some judge either. Too dark and oppressive looking? Take it up with whoever handles court design.

But to not merely claim, but rule, that portraits of white guys somehow suggests implicit bias against black defendants, is quite the stretch.

“Too often, the actors in the system do not look like the people who are swept up into it,” Kennedy said. “This ruling is a start to ensure the optics in our courtrooms are more consistent with justice, but more work is needed to improve the substance as well as the appearance of justice.”

There is nothing about this contention that has any rational basis. The “do not look like” mantra is pure ideological drivel. Defendants are entitled to due process whether they’re white, black or green, but that doesn’t mean they get actors who “look like them” or they’re denied fairness. White defendants don’t get white judges and white juries. If there was anything substantive to this argument, every defendant would be entitled to reinvent the courtroom, from judge to prosecutor to court reporter and jurors, from the pictures on the wall to the curtains, under some misguided belief that “optics” deny them their constitutional right to due process.

[Bernhard] cited a book written by Anthony Ray Hinton, a Black man who spent three decades on death row before the U.S. Supreme Court overturned his conviction. Hinton described the experience of walking into an Alabama courthouse and seeing mostly White faces as being like “an uninvited guest in a rich man’s library.” Bernard wrote the portraits might create a similar feeling for minority defendants in Fairfax County.

“Perception is often deemed reality to those participating in the justice system,” Bernhard wrote.

Does Judge Bernhard plan to have his courtroom redecorated to suit every defendant’s taste in comfortable surroundings? Worry about reality, like suppressing unconstitutionally-seized evidence and tossing inadequate indictments. If he wants dead white man portraits removed from his courtroom, who cares? But don’t pretend that’s got anything to do with giving defendants a fair trial. “Adorn” courtrooms any damn way you want, but if this is the sort of bizarre tripe that a judge believes to be a serious impediment to justice, then his perceptions are inherently suspect.

Update: The Washington Post editorial board endorses Judge Bernhard’s decision, not so much because of his rationale, but because “why not?”

That raises the thorny question of what counts as racism, whose answers will vary according to the respondent. Judge Bernhard acknowledged as much, while noting the asymmetrical cost-benefit equation of maintaining White judges’ likenesses on courtroom walls. To the public, he wrote, the portraits “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.” That sounds like common sense.

Common sense is what’s said when reason fails.

19 thoughts on “Are Paintings of Dead White Judges Racist? (Update)

  1. DaveL

    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.

    And the gold fringe on the flag may be perceived by some as denoting an admiralty court, without jurisdiction over landbound civilians, but we don’t expect the law to give any credence to such silliness.


    Have you noticed recently, that the people who complain the most about “implicit bias” and other marxist claptrap, are mostly upper middle class or rich, progressive white dudes?

  3. B. McLeod

    Clearly this lame half-step of taking down the portraits doesn’t go nearly far enough. To provide a fair trial for black defendants under this theory, they need to hang a set of portraits of black judges. Then defendants can take comfort in the knowledge that, at least wherever the portraits came from, courts are administered by judges who look like them (ideally, staff could superimpose stick-on decals of the defendant’s face over the faces on all the portraits). The judge actually presiding will also need to at least wear blackface makeup, and preferably, a latex mask of the defendant’s face. Same for all jurors, all witnesses, all spectators, the bailiffs and the court reporter.

  4. L. Phillips

    How about bare concrete walls, metal furniture bolted to the floor, shatter proof frosted glass windows no more than 6″ wide and deodorant strips wafting the subtle aroma of death and feces? Cheap to build, easy to maintain and no paintings in sight. Plus not one defendant I have ever seen was classified as ‘gray” if they were still above ground.

    1. Rengit

      Hey, don’t talk about Brutalism that way! Some of the finest architects of the 20th Century have made buildings just like that, monumental achievements of public works, you plebs could never understand the high art of slabs of concrete and unfinished iron and how their jagged placement deconstructs traditional Eurocentric standards of “beauty.”

  5. Jim Majkowski

    The opinion states, “[t]he Defendant, who is African American, is scheduled to appear for a criminal jury trial before the undersigned judge on January 4, 2021. He has filed a “Motion to Remove Portraiture Overwhelmingly Depicting White Jurists Hanging in Trial Courtroom.” … The Commonwealth’s Attorney has stated he does not oppose the granting of the Motion made by the Defendant. ”

    I conjecture the staffers who would be required to perform the necessary labor were not strongly opposed. In many worlds, that would be enough. Not for Judge Bernhard, who went on (and on, and on) for eleven pages, concluding with a statement that portrait removal would be applicable to all future jury trials over which he would preside. Were I a criminal defendant, I might be more concerned that the assigned judge is a showboat than with whatever is hanging on the walls.

  6. KP

    The funny thing is, when this moves to mainstream and is followed everywhere, the learned Judge will be expecting a portrait of himself put up as the famous instigator of the massive wave of social change sweeping the courtrooms… maybe even a statue!

  7. David Meyer-Lindenberg

    Where’s the logical nexus between “Bernard [sic] wrote the portraits might create a [bad] feeling for minority defendants in Fairfax County” and the judge’s claim that “[t]he 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”? Are the defendant’s and the jury’s feelz mystically linked in Bernhard’s courtroom, like Luke’s to Han’s or something?

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