Throughout the nation, most courts will be closed Monday in honor of the federal Martin Luther King Jr. Day holiday. As many legal professionals engage in community service to celebrate the occasion as “a day on” rather than a day off, a judge in Georgia will engage in his own unique tradition to help actualize one of the late civil rights leader’s top goals.
In King’s iconic 1963 “I Have A Dream” speech, the reverend outlined his desire for his children to live in a nation where they’d “not be judged by the color of their skin but by the content of their character.”
For the past 14 years, Spalding County State Court Judge Josh Thacker has been doing his part to ensure he’s helping make that a reality on the bench. He recently spoke with ALM Media’s Legal Speak podcast about his tradition that involves testing for implicit biases.
Now he’s revealing to Law.com the pivotal experience that motivated his annual self-check.
‘A Moderate Preference for White People’
Since 2017, Thacker has served as the sole judge on the Spalding County State Court bench within west central Georgia’s Griffin Judicial Circuit. Considering his current role “the best job” he’s ever had, the husband and father of two said he loves being a judge, even though the occupation hadn’t been an initial professional aspiration.
“When … the local judge here, Judge Sidney R. Esary, … announced he was retiring, I had no intention of running for his office until I started thinking, ‘I’ve been a prosecutor. I’ve been a defense attorney. I care for people and I’m reasonably patient. It’s an open election; I probably would regret it if I didn’t [run],” Thacker said. “So I did the only thing a smart person would do, which is ask my wife for permission.”
With the support of his family, Thacker went on to gain the majority support of voters in the May 2016 general election.
Now reelected to a third term, the judge shared that he annually renews his commitment to remaining impartial on the bench, in part, because of an experience he encountered prior to donning his black robe.
While taking a continuing legal education course in 2011 as a practicing attorney, Thacker said a challenge posed to the class of about 100 legal professionals taught him something profound about himself. The course instructor tasked the legal cohort to take a Harvard Implicit Association Test, or IAT, focused on race that evening and report the following morning, prepared to discuss the results. Designed to measure attitudes and beliefs that people may be unwilling or unable to report, the IAT aims to help reveal whether an individual has an implicit attitude they might not know about, according to the test’s creators.
“I went in brushing off my shoulders saying, ‘I got this. I’m not worried about that one,'” Thacker recalled.
Prior to starting his test, Thacker said he called and invited his friend, Rev. Jay F. Tenney, to test, too.
But it’s what happened next that began to unravel what Thacker thought he knew about himself.
“When we finished, [Tenney] popped in first and said, ‘Yeah, mine says I have no automatic preference between Black and white people,'” Thacker remembered.. “Mine, unfortunately, said that I had ‘a moderate preference for white people.’ I was deeply offended and deeply defensive and deeply upset.”
Convinced there’d been an error, Thacker said he questioned the authenticity and accuracy of the test. But rather than validate his feelings, Thacker said Tenney encouraged him “to slow down and listen.”
“[He] said, ‘I think God’s trying to tell you something here,'” Thacker recollected. “I was like, ‘Of course the pastor would say that God’s trying to tell me something.'”
Frustrated with the results and Tenney’s response, Thacker said he got off the phone with his friend “in a very unceremonious and not ‘good friend’ manner.” Thacker said he then stewed on his test result the remainder of the night, perplexed by the outcome since he’d spent his “entire life defending people, many of whom were Black.”
‘Wave of Heat and Shame’
Come sunrise, the test result remained so heavily on Thacker’s mind that it became a repeat topic of discussion during a continental breakfast with fellow CLE attendees. Thacker said he told “anyone who would listen” that “something was wrong” with the test. But, when some of his peers deemed his response as “a little defensive,” Thacker said he stormed out of the morning gathering “in a huff.”
Once in the lobby, Thacker said he began engaging in a conversation with a young Black male front desk attendant about check-out procedures. During the conversation, Thacker learned that the attendant aspired to become an attorney, majored in political science at the time, and worked overnight shifts at the hotel to support his educational schedule. Thacker said the attendant shared that at the end of his shift, he would work out in the hotel’s fitness room, grab breakfast, a shower and then head to class.
“He was a very impressive young man and I enjoyed talking to him,” Thacker said. “I told him, ‘Best of luck,’ and I went up to my room.”
Albeit impressed by the attendant, Thacker remained frustrated by his test result when the elevator reached the floor of his assigned room. His focus, however, shifted when the swift movements of a hooded Black man visible through a hallway window, caught his attention outside. Thacker said he witnessed the individual repeatedly looking left and right as he approached a parked vehicle. Instantly, Thacker said he began to think of the person as a “suspect.”
“‘What’s that guy up to?,'” Thacker said he thought to himself while observing the individual. “I see him reach into a car and open the lock from the inside. So now I’m really paying attention. ‘What is going on here? This doesn’t look OK.'”
After opening the backdoor of the vehicle, rummaging through items inside and then tossing a few to the ground, Thacker said the man flung a backpack he’d been carrying to the ground and began putting items from the car in it. Convinced he’d witnessed a burglary in progress, Thacker said he felt the urge to inform the front desk attendant and contact local authorities.
But before Thacker could act on his instinct, he said the “suspect” began putting the items he’d thrown down to the ground into the backpack. The individual then tossed the bag in the vehicle’s backseat and closed its door. Thacker said the “suspect” then turned around, removed his hood and began to walk back to the hotel.
What Thacker saw next shook him to the core.
“It was the young future attorney!,” Thacker said. “I just felt this wave of heat and shame roll over me from head to foot. I thought, ‘Fine, God. I will listen now. You have my attention.’ … It took three knocks to the side of the head to finally go, ‘Fine, maybe I’m not as good as I think I am. Maybe I’m not as centered as I think I am. Maybe I need to put a little more effort into this area, and it’s not just going to naturally come to me.'”
‘A Pivotal Moment’
Although shocked by the revelation he’d just encountered, Thacker said he felt compelled to share his epiphany with his classmates when the CLE reconvened that morning.
“We get to the class and [the instructors] asked, ‘Did everybody take their tests?’ And [the class] said, ‘Yes,'” Thacker said.
But when the instructors asked “Who’s ready to talk?,” Thacker said the class went silent.
Allowing his bravery to overpower his shame, Thacker stepped up first. Embracing vulnerability and transparency, he shared with the class how his own experience moments prior had arguably affirmed his personal test result of having “a moderate preference for white people.”
“I said, ‘I was not worried about this thing at all, until I took it.’ And then I just told the story,” Thacker said. “It was a pivotal moment for me to have to admit that and acknowledge something that I desperately did not want to be true about myself.”
By “owning it,” Thacker said he could then shift his mindset and approach to addressing the implicit association. With his religious faith firmly in mind, Thacker pledged to actively improve his inherent ability to balance his associations going forward, including years later on the bench.
“Every day, as I go out there, I remind myself that everybody I’m about to meet is someone Jesus loved,” Thacker said. “This is a little bit spiritual, and I apologize for mixing the two, but it works for me.”
Dedicated to continual improvement, Thacker said he decided after his initial result to take the IAT annually on Martin Luther King Jr. Day as a self-check, of sorts, to gauge any implicit biases in his personal and professional life.
“My biggest fear in this was that I would tell myself, ‘I’ve got it’ [again], because I thought I had it. … But we all know that for folks to stay on the path they’re working on, it takes constant, steady effort,” Thacker said. “By doing the IAT each year, … that reminds me, ‘Hey, I’m doing all right.’ And obviously, if it turns out that I’m not doing all right, I’ll own it and I’ll question it and everyone will know that I’m still human.”
Take the Test
When asked if Thacker had encouraged other legal professionals to take the Harvard Implicit Association Test, he said he hadn’t. However, the judge acknowledged that he’d been brave enough to share his motivation for engaging in his own annual testing tradition in a post on his judicial Facebook account last January.
“I haven’t figured yet how to work it into conversations and have it be something that naturally flows out, because there’s a lot of awkwardness around this conversation,” Thacker said. “I have lots of people that I love dearly who I couldn’t really have this conversation with without it getting very sideways.”
But with the judge’s experience now featured on a national podcast and within national publications, he welcomed the idea of other legal professionals assessing themselves for potential implicit biases.
In addition to taking the IAT, Thacker recommended judges and lawyers watch an episode of ABC’s “What Would You Do” online to see “what implicit bias looks like in action.”
For those brave enough to test their implicit associations, Thacker offered a final suggestion that involved a literary call-to-action. The judge recommended that those seeking to learn next steps in addressing “the race question” in everyday life read “The Conversation” by Dr. Robert Livingston.
“It is a wonderfully practical hands-on book about how to have ‘The Conversation’ with anyone about race,” Thacker posted. “I met Dr. Livingston and was overwhelmed with his ability to speak about a very difficult topic with humility, kindness and grace.”
More enlightened and determined to showing up as his best self on and off the bench, Thacker said he welcomed anyone with questions about his experience to contact him. He said he remained hopeful that his experience might be helpful to others.
“If it moves the needle just a couple of points this year to make things better, I look forward to hopefully being a small part of this,” Thacker said.