- Edward C. Hopkins Jr. is a data security and workplace privacy lawyer and strategist at the national law firm Fisher Phillips.
- He graduated from the U.S. Air Force Academy and holds a law degree from the University of Arizona.
- Hopkins holds all seven certifications from the International Association of Privacy Professionals.
- He has been involved with the Sam Cary Bar Association, Colorado's professional organization for Black legal practitioners, for roughly a decade.
- Hopkins has been involved in the judicial selection process and an advocate for diversity on the bench.
Colorado Politics: Most organizations strive to achieve diversity and open themselves to people of all backgrounds and experiences. Why is it important for the operation of Colorado's judicial system to ensure it is racially diverse — both in the lawyers who represent clients and the judges who preside over cases?
Ed Hopkins: I don't agree that most organizations strive to achieve diversity and open themselves to people of all backgrounds and experiences. I believe the opposite is true because most organizations can achieve diversity and open themselves to people of all backgrounds and experiences, especially at the leadership levels, but choose not to do so or choose to intentionally underperform on this front.
It is important for Colorado's judicial system to be diverse because the state judicial system referees disputes that can substantially alter its residents' freedom levels, career prospects, wealth levels and reputations. The officers of the court, both the trial lawyers and the judges, wield great influence over the fates of those who must turn to them for help resolving their disputes.
To offer its litigants the fairest platform for dispute resolution, the judicial system must strive to have as much cultural competence as possible. Cultural competence is the ability to understand, communicate with, and effectively interact with people across cultures. The more cultural competence a judicial system has, the less likely its most influential officers — the trial court judges and the most prestigious trial lawyers — will wield their powers in ways that will unjustly favor one group of litigants over another.
I believe the best way to achieve the highest levels of systematic cultural competence in a state judicial system is to strive to make its leaders as collectively culturally competent as feasible. To do that, the judicial system needs to work hard to recruit, promote, and empower a diverse cadre of leaders, who, collectively, will be wiser and fairer to the system's litigants than any homogeneous group of leaders can be.
CP: Colorado is a mostly white state with a sizable Latino minority and an even smaller Black population. How would you grade our legal system as being representative of those demographics in 2020?
Hopkins: While I cannot endorse it since I have not independently verified it, I have carefully reviewed the information published at The Gavel Gap website, www.gavelgap.org. I'm aware of no clear and convincing evidence that would cause me to disagree with the grade The Gavel Gap gives to Colorado's state court system. It's not a passing grade.
According to the Gavel Gap website, women of color constitute 15% of the state's population but only 4% of the state court judges. Men of color constitute 17% of the state's population but only 7% of the state court judges. Lawyers of color are still the most underrepresented groups, by far, on Colorado's bench. White women have made the most strides, as they constitute 34% of the state's population and 26% of the state court judges. But white males are still overrepresented. Even though they constitute only 33% of the state's population they hold 63% of the state court judge positions. In 2020, that sort of representative imbalance should not be tolerated in public judicial institutions that all taxpayers fund.
CP: Colorado has a method of selecting judges whereby citizen-led commissions screen applicants for judgeships, interview candidates and recommend three individuals to the governor for him to choose. Gov. Jared Polis has appointed five Black women as judges since he took office, more than all of his predecessors combined. He also recently appointed the first Black man to the bench in nearly a decade in the most populous judicial district, which includes Arapahoe and Douglas counties. Do governors simply need to be more mindful, in your view, of who they choose, or are there other factors that weigh against a diverse bench statewide?
Hopkins: Gov. Polis's administration has helped Colorado make great strides on this front. If all governors followed his lead, the nation's state court judicial systems would improve because their collective cultural competence would increase. Though Gov. Polis's administration has done better than average on this issue since taking office in January 2019, it is important to keep in mind that they have only been at it for 21 months. Colorado's vast gavel gap was formed during several generations.
Colorado will need to do much more than it has during the past 21 months to close Colorado's gavel gap as much as possible, as fast as possible. Investing in initiatives that will help attract more diverse lawyers to practice in the state, help more of the diverse lawyers in the public sector build careers that will make them competitive for state court judge positions, and encourage more of the most successful diverse lawyers in the private sector to take pay cuts to serve Colorado as judges can help close the gaps faster.
Governors need to be more than mindful about the gavel gaps in their states. They need to take bold and politically unpopular steps to drastically decrease the homogeneity of their state court benches as quickly as they can. The governors who like to blame the lack of their states' bench diversity on the pipeline of qualified diverse judicial candidates are welcome to have their staff contact me to learn more about why that pipeline argument is fallacious. They all can use their limited resources more effectively to recruit, promote and empower more diverse legal leaders in their states if they choose.
CP: I know that you encourage Black attorneys to come to Colorado to practice law. How would you characterize the success of your efforts?
Hopkins: Even though I can be very persuasive, I've been very unsuccessful in my efforts to encourage more African American attorneys to leave the cities in which they currently practice and move to Colorado.
Success in the legal profession depends a lot on lawyers' social capital or relationships and reputations or prestige. These are not things for which bar exams test. But all private firm lawyers know they matter a great deal, probably more than they should matter.
African American lawyers who can practice in most large cities at multiple prestigious, national law firms are difficult to attract to Colorado unless they are coming here for general counsel positions or for family reasons. The ones who have built or could build successful practices that would make them partners at most of the nation's top 200 law firms generally do not see Colorado as the best place from which to build their practices, relationships, or reputations.
The paucity of other African American lawyers at the big firms in Colorado is a major reason for their lack of interest in practicing here. The paucity of diverse lawyers in Colorado's appellate courts doesn't help me make the case either. Smart people can read between the lines. African American lawyers, when they read between the lines, often interpret the message to be there must be something about Colorado that has prevented a reasonable amount of African American lawyers from holding the most powerful legal jobs here.
CP: We have been talking about the state of Colorado, but I realize the federal appeals court based in Denver, the 10th Circuit, has only one Latino and one Black judge out of the 12 on the bench. Neither were appointed by the last two presidential administrations. Assuming that it is just as important to have diversity at the federal level, is it the same set of factors that keep judges of color out of the candidate pool there?
Hopkins: No. Federal judges are selected differently than state court judges. The federal selection process involves more powerful political forces that have different political and economic objectives than the political forces that most influence state court judge selections. Also, a small group of people tends to influence which attorneys are selected for federal judge jobs. Questions about why the federal bench is so brazenly homogeneous and misrepresentative of the nation's diverse population must be posed to the U.S. senators and U.S. presidents who place federal judges in their powerful public jobs. Those who want to influence the federal judicial selection process will likely need to acquire and wield great influence over federal political systems first.
CP: In your day job, you focus on workplace and data privacy. How has the COVID-19 pandemic changed the relationship between workers and their data privacy?
Hopkins: Remote working or teleworking has increased the number and complexity of data privacy compliance challenges employers face. For example, employers who require their employees to submit to thermal scans or temperature tests prior to entering their workplaces collect biometrics and medical information from their employees. Under the Americans with Disabilities Act, employers may have duties to log the results of those thermal scans, file the logs separately from their employees' personnel files, and reasonably safeguard their logs against cyberthreats.
Nearly all employers who have remote workers or identify their employees using biometrics, such as fingerprint scans, iris scans, or temperature scans, need the counsel of experienced data security and workplace privacy lawyers now more than they ever have. And the costs of getting caught failing to comply with applicable data privacy laws is increasing. Employers who choose to ignore, downplay, or strategically underinvest in their data privacy compliance duties could be making bet the business decisions.