Tuesday, April 29, 2014

Fair Housing Month in the Fiftieth Year after the Civil Rights Act

Housing Segregation Lingers 50 Years After the Civil Rights Act[1]
Conditions for African Americans are different and immeasurably better than they were before the passage of the 1964 Civil Rights Act. At the present, it is almost difficult to imagine the extreme oppression African Americans endured under Jim Crow. In the Southern states, schools, restaurants, hotels, theaters, and public transportation, were segregated. The separation included elevators, parks, public restrooms, hospitals, drinking fountains, prisons, and places of worship. Whites and blacks were born in separate hospitals, educated in segregated schools, and buried in separate graveyards. Blacks were not allowed to vote in elections.
There were, in effect, two criminal justice systems: one for whites and another for blacks. The system was codified in state and local laws and enforced by intimidation and violence. When the color line was breached, violence was unleashed against offenders by the Ku Klux Klan and local whites, often in concert with local law enforcement officials. Lynching and other forms of violence and intimidation were routine. In the north and south, blacks lived in segregated neighborhoods and were relegated to the lowest paying, least desirable occupations.
In the decades that followed the enactment of the Civil Rights Act of 1964, the black middle-class has grown rapidly. Levels of educational attainment are higher. Employment opportunities are greater. Family incomes are higher. The election of Barack Obama as President in 2008 signaled an unprecedented advance in race relations in America.
However, an examination of the status of African American families reveals a mixed picture; the best of times for some, the worst of times for others. For those in a position to take advantage of the opportunities created by the Civil Rights revolution, the gains over the last generation have been remarkable. For those left behind in America's impoverished communities, the obstacles to advancement are more daunting today than they were a generation ago.
A significant impediment to African American progress is the high levels of discrimination and segregation that persist in the nation's housing markets. Most people believe that families live wherever they can afford to purchase a home or rent an apartment; that residential patterns reflect the private choices of individuals. This widely held assumption is simply not accurate. Year after year, studies have consistently shown that discriminatory practices are alive and well in the nation's housing markets. African-American families do not enjoy the range of residential options that are available to white families with similar incomes and credit histories.
Racial segregation began at the beginning of the twentieth century. In housing it was perpetuated by the federal government in the 1940s and '50s when suburban communities were constructed with federally-insured mortgages. To be eligible for mortgage insurance, the federal government required property deeds to contain racially-restrictive covenants that excluded African American families from suburban communities.
Despite being outlawed in 1968, housing discrimination persists. In "matched pair" tests, (using whites and black testers with identical income and credit histories), white homebuyers were favored over blacks in 17.0 percent of the cases. White homebuyers were more likely to be allowed to inspect houses and to be shown homes in more predominantly white neighborhoods than similarly situated blacks. White home seekers also received more information about financing than comparable black homebuyers.
Social scientists use a measure known as the "dissimilarity index" to determine levels of residential segregation. Cities are categorized as highly segregated, moderately segregated and integrated. These measures show that the 50 largest American cities are all highly segregated. http://www.censusscope.org
The continuing high levels of segregation in public schools reflect the racial composition of the neighborhoods where they are located. Public schools in segregated neighborhoods almost  invariably lack the quality of schools in suburban communities. They often have high drop-out rates and other educational deficits. As April is Fair Housing month, it is important to understand the societal effects of neighborhoods that are lingering vestiges of a segregated past.

[1] Leland Ware, Louis L. Redding Professor, University of Delaware

Saturday, April 26, 2014

So Much for Stare Decisis: Court Upholds Voter Ban on Affirmative Action

Schuette v. BAMN: Another Blow to Affirmative Action[1]

On April 22nd, the Supreme Court affirmed the constitutionality of a Michigan referendum that outlawed affirmative action in Schuette v. BAMN. Under Chief Justice John Roberts, the Supreme Court has issued a series of decisions that undermine the achievements of the Civil Rights Movement. Schuette represents the latest episode in this unfortunate trend.

In 2006 Michigan's Civil Rights Initiative ("Proposal 2") amended the State's Constitution to prohibit "preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin." A coalition of Civil Rights groups filed a civil action claiming that Proposal 2 violated the Equal Protection Clause of the Fourteenth Amendment because it altered the state's political process in a manner injured racial minorities.

Applying the “political process” doctrine, the Sixth Circuit held that Proposal 2 created a special burden on racial on minorities that was not imposed on other groups. The Court relied on the rulings in Hunter v. Erickson, 393 U.S. 385 (1969) and Washington v. Seattle Sch. Dist. No. 1 (1982). Those cases held when a majority of the electorate modifies the political process in a manner that burdens a racial minority's ability to participate on an equal basis in the political process, it deprives that group's rights to equal protection under the Fourteenth Amendment.

In Hunter v. Erikson the City of Akron, Ohio, enacted a fair housing ordinance that pro­hibited racial discrimination in housing. Voters responded by amending the city charter to overturn the ordinance and to require any additional antidiscrimination housing ordinances be approved by a referendum. Other ordinances regulating the real property market were not subjected to similar requirements. The Supreme Court found that by singling out antidiscrimination ordinances, Akron's city charter amendment placed a special burden on racial minorities' participation in a governmental process that was not imposed on other groups.

In Washington v. Seattle Sch. Dist. No. 1, a school board adopted a busing program to promote racial diversity in schools. Voters who opposed the school board’s plan enacted a state initiative that prohibited busing to desegregate schools. The Court found that the practical effect of the state's initiative was to remove the authority to address a racial problem from the existing decision making body in a way that unduly burdened minority group's participation in the political process.

Applying the same reasoning, the Sixth Circuit struck down Proposal 2 in Schuette because it established a distinct and more burdensome politi­cal process for the enactment of University admissions plans that considered racial diversity. Donors, athletic officials, religious organizations, and alumni can advocate that Michigan's public universities include their constituents in admissions decisions. Racial and ethnic minorities and others who support greater student body diversity were effectively precluded from doing so.

In an 8-2 decision the Supreme Court reversed the Sixth Circuit. The majority ruled that courts cannot prohibit a state's voters from choosing to outlaw affirmative action programs.  Justice Kennedy's plurality opinion in Schuette sought to distinguish Hunter and Seattle on the grounds that Proposal 2 did not inflict the type of injury involved in those cases. However, it left unexplained how the injury to minority groups in Schuette is different.

As in Hunter and Seattle, voters in Michigan imposed burdens on minorities' efforts to influence university admission policies that were not established for other groups. The plurality opinion conceded that Hunter and Seattle applied, but claimed that those decisions took an unduly expansive view of the Equal Protection Clause and are no longer viable precedents. So much for stare decisis.

Chief Justice John Roberts and Associate Justice Samuel Alito joined Kennedy's plurality opinion. Justice's Clarence Thomas and Antonin Scalia would have overruled Hunter and Seattle outright. Justice Stephen Breyer concurred with the result based on a different legal rationale. Justice Sotomayor issued a strongly worded dissent which was joined by Justice Ruth Bader Ginsburg.

Kennedy's plurality opinion emphasized that the decision in Schuette did not disturb the ruling in Fisher v. University of Texas which held that consideration of race in University admissions is permissible. However, Fisher made race conscious affirmative action plans far more difficult to justify. The Schuette decision is just as damaging as it likely to encourage other states to enact similar bans on affirmative action.

[1] Leland Ware, Louis L. Redding Chair and Professor of Law & Public Policy University of Delaware

Sunday, April 20, 2014

Lawyers of Conscience Struggle to Make Georgia's Courts More Representative

As early as 1976, the Gate City Bar Association, the Georgia Conference for Black Lawyers (a group which no longer exists) and the Georgia Association of Black Women Attorneys (GABWA) have worked separately and, at times, collectively to address and raise awareness about a historic dilemma – that, judicial accountability requires that the Nation’s courts must be representative of the communities that they serve; that judicial diversity promotes impartiality by ensuring that all viewpoints, perspectives and values are part of the decision-making process; but that, although the American South is blessed with a significant number highly talented lawyers of diverse backgrounds, there has been a stunning lack of racial and ethnic diversity on the region’s State and federal courts. 

The organized black bar began to play an essential role in galvanizing community involvement in the selection of judges at the State and federal levels.  Early victories included the appointments of Horace T. Ward and William Alexander to the State Court and Superior Court of Fulton County.  In the Carter years, the White House and Georgia’s U.S. Senators actively sought and received public input on the selection of federal judges, and the leadership of Gate City and the Georgia Conference worked tirelessly to assure that the community was engaged in this process, which ultimately resulted in the appointment of Judge Ward to the U.S. District Court for the Northern District of Georgia. 

The Gate City Bar placed significant emphasis on the importance of judicial elections, as well as appointments.  In 1980, Gate City published the results of a poll which gave its highest rating to Clarence Cooper, who went on to become the first African American judge in the history of the State to take office by county-wide election.  As early as 1988, Gate City began to support the Brooks litigation, a challenge to the at-large method of electing state court judges, claiming that the at-large approach diluted minority voting strength.[1]  Despite the dismissal of the suit after seven years of litigation, Governors Zell Miller and Roy Barnes appointed a number of diverse judges, some of the State’s best and brightest practicing attorneys, and the State’s courts at last began to reflect the rich diversity of Georgia’s communities.  However, this progress largely ground to a halt with the election of Sonny Perdue in 2002.  Since that time Fulton County, which has the State’s largest concentration of lawyers of color, has seen no persons of color appointed to its Superior Court.


The recent paucity of diverse appointments at the state level has been mirrored at the federal level. No judge of color has ever been appointed to the U.S. District Court for the Southern District of Georgia.  Although there are eight positions on the Middle District court, on one person of color has ever served on that court.  Even the Northern District of Georgia has never had more than one full-time judge of color at any given time.  Judge Clarence Cooper’s decision to take Senior Status left the Northern District court for a time without any judges of color in the early part of President Obama’s term.  In early 2010, several Gate City representatives met with members of Georgia’s House delegation to discuss this situation and, shortly thereafter, four members of Congress sent a letter asking the White House Counsel to meet with Gate City Bar leaders to discuss the issue. 

On June 14, 2010, the President announced his intention to nominate two individuals to some of the existing vacancies, including one white lawyer who resided in the Northern District of Georgia and one African American judge who resided in another district.  In July of 2010, Gate City’s President co-authored an Op-Ed which posed the question: “Are there no Qualified African American Lawyers in the Northern District of Georgia?”  This Op-Ed, specifically calling for the appointment of one or more African-American females, appeared in the Atlanta Daily World and the Atlanta Journal Constitution, and resulted in a meeting of Gate City’s President and Past Presidents with the White House Counsel.  Shortly after this meeting, the Senators announced two candidates whom they could support (including an African-American female), and the White House responded by nominating two African-American females, whose names were ultimately withdrawn.


In January, 2012, representatives of GABWA met with Governor Nathan Deal to talk about diverse appointments to the Judicial Nominating Commission (the "JNC"), the body which recommends attorneys for appointment to the Georgia State courts when there is a vacancy.  Despite a commitment to address the issue, Governor Deal did not make any additional appointments to the JNC until November, 2013, when he appointed an Asian-American (brining the total minority representation on that body to two out of the Commission’s twenty-one members). 


In May, 2012, after nearly twelve years of quiet diplomacy with Governors Perdue and Deal and waiting for a change in the landscape of non-diverse appointments to Georgia’s courts, the current Presidents and several past Presidents of Gate City and GABWA joined forces with a group of elected officials, community leaders and clergy to publish an Op Ed in the Daily Report entitled “Will the Last African-American Judge Please Turn Out the Lights?”  Following the publication of this Op-Ed, the Current and Past Presidents of Gate City and GABWA, together with Rev. Joseph Lowery, Rep. Tyrone Brooks and others, convened a news conference on the steps of the Fulton County Courthouse, calling on Governor Deal to honor his commitment to diversify the JNC and consider diversity when making judicial appointments.  Shortly thereafter, representatives of Gate City and GABWA met with members of the JNC to get an understanding of the Commissions inner workings and to ask them to consider diversity in making their recommendations.  Up until that time, these events represented perhaps the most significant collaboration between Gate City, GABWA and community-based organizations addressing the diminishing diversity on Georgia’s courts.

Following the events of May, 2012, current and former presidents of Gate City and GABWA continued to search for additional ways to bring their collective efforts to bear on the issue of judicial diversity.  What followed was a period of considerable consultation with leading figures in the bar, including partners in major law firms, government lawyers, in-house counsel, sole practitioners, clergy and elected officials, in an effort to devise a long-term strategy and plan of action.  These discussions resulted in a collective recognition:

·      that the goal of judicial diversity must not be pursued solely through the avenue of gubernatorial appointments;

·      that more significant change might well be brought about through the electoral process;

·      that, for the electoral process to be effective, a new organization was needed for the purpose of educating the public on the importance of judicial elections, as well as appointments;

·       that a concerted effort is necessary to assure that the voting public has quality candidates from which to choose; and

·      that a sustained effort should be made to assure sufficient support for qualified candidates. 

The result was the formation of two organizations in January 2013:

·       Advocacy for Action, Inc. (“AFA”), a not-for-profit social welfare organization whose sole purpose is public education; and

·       AFA Fund (the “Fund”), a separate political action committee PAC, whose purpose is to affect the outcome of contested judicial elections. 

Why is there a need for AFA and the Fund?

The need for a diverse and representative judiciary is widely recognized and accepted.  We can also agree that judges should be selected on the basis of merit – we want out best and brightest lawyers serving on our courts.  Moreover, these two objectives - considering diversity in electing or appointing judges and having our best legal minds in the judiciary – are not mutually exclusive concepts that are at odds with each other.

Our nation was founded on the principle that, if government is to be accountable to the people, it should be administered by individuals who are representative of the communities they serve.  The principle is just as applicable to the courts as it is to other aspects of government.  Diversity in our courts has a positive impact on the public perception of the fairness of the judiciary.  It enhances respect for the decisions made by our courts.  It enhances the quality of justice by assuring that differing viewpoints are brought to bear in deciding on important issues can have life or death consequences for the litigants. 

Although the need for a diverse judiciary is widely accepted in principle,  progress toward achieving that goal has largely stalled over the last twelve years. Until November of 2013, there was only one African-American among the 21 members of the JNC. The State is blessed with a large number of highly qualified African-American lawyers from which to choose but, over the last twelve years, very few have been appointed. Although African-Americans comprise over a third of Georgia’s population, less than 9% of the State’s judges are African-American.  Most of Georgia’s counties have never experienced the appointment of an African-American judge.  In Bibb County, where African-Americans comprise 53% of the population, the first African-American female was not appointed until very recently.  In Fulton County, where African-Americans comprise at least 44% of the population, and which is home to the State’s greatest concentration of African American lawyers, no African-American has been appointed to the Superior Court bench since 2002. 

Over the last twelve years, the appointment process has proven ineffective as a means of bringing about a diverse judiciary.  Although African-Americans have applied, few have been appointed.  By now it has become apparent that, if change is to occur, it will require a new approach.  Under our Constitution, the principal alternative for brining about a change is at the ballot box.

It’s a matter of simple democracy: if we have to choose between judges selected by the politicians (on the one hand) and judges selected by the people (on the other), then perhaps it’s time to make our case to the people and put our trust in them.

[1] Brooks v. State Bd. of Elections, 775 F. Supp. 1470 (S.D. Ga. 1989) aff'd sub nom. Brooks v. Georgia State Bd. of Elections, 498 U.S. 916, 111 S. Ct. 288, 112 L. Ed. 2d 243 (1990) and aff'd sub nom. Georgia State Bd. of Elections v. Brooks, 498 U.S. 916, 111 S. Ct. 288, 112 L. Ed. 2d 243 (1990).

Sunday, April 13, 2014

The Anatomy of a Judgeship

By Marie Stokes Jemison
From Southern Changes, Vol. 2, No. 2., 1979.

A vacancy loomed on the Federal Fifth Circuit Court of Appeals, and Janie Ledlow Shores set about to fill it.

Soon after Janie Ledlow Shores won election in 1974 on her second try for the Alabama Supreme Court, she hankered for a bigger prize. A vacancy loomed on the Federal Fifth Circuit Court of Appeals and the first woman in Alabama and the third in the nation to sit on a state's highest court set about to fill it.
"I never did yearn for the U.S. Supreme Court even - just the Fifth Circuit." She knew where the real power resided. The Fifth had been the freedom train for Blacks in the fifties and sixties and Janie wanted to be part of the major legal decisions affecting the late seventies and eighties. So, she went for it when the vacancy was to be filled in 1976. During that presidential year the candidate Jimmy Carter promised judgeships on merit, not politics.
She was the only woman to apply to the first nominating commission appointed by the new President and his Attorney General, Griffin Bell. Although Shores and Bell were old buddies in the legal world and her qualifications as a legal scholar were renowned, her selection was not in the cards. Robert Vance, the witty, urbane, canny chairman of the Alabama Democratic Party, was the select of destiny this time. Janie's friend Vance had made a national name for himself in the eleven years he headed the party as the Chief of Alabama's anti-Wallace forces. His law firm has profited handsomely by his fame as the voice of reason and progress in Alabama's gothic politics.
Now with George Wallace in his last Hurrah, a lifetime federal judgeship tempted. Who could deny him? Certainly not Allen and Sparkman, the two senators to whom he had been duly obedient and helpful. Certainly, not the southern president to whom he had delivered the state by a small margin. The charming Vance dazzled the commission. Janie came off nervous and unsure. She was surprised that she needed constituent letters. "Somebody told me I didn't need a lot of letters. I got the wrong signals."
Vance won handily.
After not even making the list of all White males, Janie returned to her active, visible role on the state court. She wrote opinions during 1977 and 1978 which proves the case for female judges. On April 22, 1977, the Alabama Supreme Court voted that a married woman had a right to sell her own property without her husband's consent. Justice Shores wrote the opinion.

"There is no provision of the (Alabama) constitution", she wrote, "which would permit the legislature to deny married women rights possessed by all other adults." "The authority to do so must be found in that document and cannot rest upon an ancient myth that married women are presumed more needful of protection of their own interests than other adults, male or female." Alabama was the last state in the Union to deny married women that privilege.

Next to fall was the archaic married woman's will. Under Alabama law, a woman who made a will during her first marriage was required to make a second one if she remarried. Failing to know this legal secret, as was the case with many women, the legal consequence was that second husband, on the death of the wife, shared her estate with her children. It mattered not that the woman had not wished her husband to inherit. This was the law until Janie Shores wrote the opinion striking it down.

In October 20, 1978, President Carter signed The Omnibus Judgeship Act. The law stated "The Congress takes note that only 1 percent of federal judges are women.

Since the last meeting three members of the commission had been "rotated" off. The significant change was the replacement of the "militant" Florida Black female, Francina Thomas. Charlotte Dominick of Birmingham, Alabama, a member of both commissions said, "Francina was fantastic. She asked questions no one else was willing to ask. She probably was replaced by Griffin Bell because they thought she had an axe that is being both a woman and a Black." Ulrick Lincoln, one time a lawyer in the Department of Justice replaced Francina Thomas. In 1979 Lincoln is a member of a large Tampa law firm.

Nevertheless, Janie felt good about her chances. Again she was the single woman to apply from Alabama. Women were so anxious to see her chosen that she looked for no competition from her home state. The kudoes came fast.

From a legal scholar: "Justice Shores has the ability to isolate and discard the minutiae of a lawsuit and focus on the crucial issues which must be confronted. More importantly she has the unparalleled capacity to appreciate the logical and practical ramifications of her decisions".

Without the legal gobble-de-gook, a lawyer who had practiced before the court: "What a penetrating mind. She sees right through the bullshit into the heart of the matter".

Then in mid-January 1979, the legendary "real" governor of Alabama federal Judge Frank Johnson, entered the race. Johnson and Shores were thick as clabber. When Janie was a poor, scrawny, teen-ager riding the bus from Loxley to Mobile, Wallace Johnson, brother to Frank, was in the law firm which gave her a job. A Johnson sister married a cousin of Janie's in 1955 and the friendship between the future judges, Johnson and Shores, began in earnest.

"I love Frank," says Janie. "When I heard he had applied, I called him and said I thought I ought to get out and work for him. He said, 'No, don't do that, Janie. Stay in'. After I hung up I wondered why he hadn't called me."

She went to see her old friend, Attorney General Griffin Bell. He had seemed genuinely grieved that she struck out the first time, even telling her that he had replaced the "militant" Black woman who had given her trouble. He did not tell her that Francina Thomas' replacement would be the one to do her in. "The President wants to see women and minorities on the list," he told her.

A few days before the February meeting, Ulrick Lincoln called Janie. He told her that he had received a letter alluding to a conflict of interest on her part in a legal matter involving her husband, James Shores, Jr.

"I thought it was decent of him to warn me," she said. "He advised me to be prepared to be questioned by the commission on the allegations. I called the lawyers in the case and was assured that I had at no time intervened nor was my name a part of the case in any way. I was not told who originated the letter. It was not until later that I found out the letter was from George Lewis Bailes."

Bob Vance picked Bailes to succeed him as Chairman of the Democratic Party. They were old and trusted friends.

Bailes is a real estate man and a former Alabama State Senator with a long smoldering vendetta against James Shores. Shores reciprocates, even going to the extreme in challenging Bailes' Party seat in the 1978 elections. The letter went to only the three corporate lawyers on the commission. Justice Shores was questioned extensively by the commission members on the case in which her husband was a party, but she was not. It does not appear that any of the male candidates were interrogated about their wives' possible irregularities.

Bailes says that he wrote the letter as a private citizen not as Party Chairman. In the public eye there is not a dime's worth of difference. Women had already taken his number when he came out on television in 1978 against the Equal Rights Amendment. This attack on Janie's integrity incensed fair-minded people all over the state. The letter writer did not say why he chose the three members to receive the letter nor did he divulge his motives.

Apparently Bailes' letter did not cut any ice with the commission but did contribute additional fuel for the fire that would consume Janie. The real screw was at the top. Despite the continuous extravagant presidential pleas to choose women and minorities for the list, the commission seemed to hear a different order. Florida and Georgia dominated in the membership of the eleven member group with two from Alabama and one from Mississippi. The Georgians were reportably well-schooled. It was noticed that the commission president, Dubose Ausley, a Floridian, when stuck on a point quizzically turned to the Georgian end of the table. The surprise was Ulrick Lincoln, the swing vote. He voted not only against Janie, but his Black brothers as well.

Court watchers surmise that despite the Carter-Bell protestations on democratizing the list, the actuality was too hot to handle. Frank Johnson was all along the object of their affections. To put the popular Janie on the list and then bump her would offend all those uppity women out there and Carter had enough trouble in 1980. Griffin Bell's finger prints were on the glass. He had restructured the 1976 commission and Ulrick Lincoln had come right out of his shop.

Reaction to the list of all White males was swift. David Cohen, top dog at Common Cause, the people's Lobby, presumptiously asserted that "no woman or Black would feel the least rejected if Carter passed over them in favor of Johnson."

Judith Crittenden, Birmingham attorney and member of the Alabama Women's Political Caucus took another view. At a press conference she expressed "shock and disappointment" over the commission's failure to include either a woman or a Black among the nominations. "Women's groups are particularly disappointed in the list of White candidates in the light of the President's mandate and the presence of highly qualified minority and female applicants."

Of course, every Black and White person in the race from Alabama knew the game was over when the giant, Frank Johnson, caught the ball. The only faint hope was the possibility of a second circuit judgeship for Alabama which did not materialize. The point in this bit of duplicity on the part of the President and his people is that women took Carter seriously when he said he wanted a selection free of political influence (with a qualified female candidate, a second judgeship seemed in the cards.) As usual, we were naive.

The district judgeships in Alabama are now over. The nominating commission for these positions did select two women for the list. Neither was chosen by the Senators, possibly because neither was as qualified as one of the other two women not chosen. But this time, Blacks got their chance with two newly created federal judgeships. Maybe next time we women will get ours. I wouldn't bet on it.

At the time of this writing, Marie Stokes Jemison was a free-lance writer living in Birmingham, Alabama, actively working for the ERA.

Sunday, April 6, 2014

Community Involvement in Federal Judical Selection in the Carter Years - The Georgia Experience

In 1976, Presidential candidate Jimmy Carter argued that judges should be selected on the basis of merit alone; that panels of lawyers and laymen should be appointed to suggest qualified nominees. This was at a time when there were no judges of color on Georgia’s federal courts.

With the Presidency and the Congress in the hands of a single party for the first time in several years, Congress in 1977 enacted the Omnibus Judgeship Act, which created 152 new federal judgeships, which resulted the largest one-shot increase in the nation’s history up to that time.  The Act also empowered the Administration to establish “standards and guidelines” for choosing federal district judges, including a guideline that urged the appointment of more African-American and female judges.  While the Justice Department emphasized that the Act merely established “guidelines,” the President urged individual Senators to set up merit selection commissions, and the Office of White House Counsel was fairly aggressive in urging the consideration of candidates from diverse backgrounds.
President Carter was ultimately called upon to fill six positions on the Northern District of Georgia, and there was considerable public involvement in the discussions leading to the filling of these positions. 
In 1978, the Executive Committee of Atlanta’s Gate City Bar Association spent considerable effort raising awareness about the total lack of African-American federal judges in the Deep South, and the suggestion soon began to take hold that at least one of the Atlanta appointees should be an African-American.  The Presidents of the Gate City Bar Association and the Georgia Conference of Black Lawyers traveled to Washington to meet with Deputy Attorney General Michael Eagan who, within the Justice Department, had the responsibility for coordinating the judicial selection process.  In this meeting, Egan felt the need to look outside the Northern District of Georgia for qualified candidates, suggesting that the President of the Georgia Conference should relocate to Atlanta from Augusta, or that a prominent State Representative should relocate to Atlanta from Savannah.  Among Atlanta’s majority bar, there was considerable sentiment that one of the appointees should be African-American, and that that the appointment should go to one of the very few African-American partners in a majority law firm. 
Among community-based groups within the African American community there was considerable feeling that, because the community was so highly diverse, there should be more than one African-American appointee.  Moreover, prevailing community-based sentiment was that the appointees should be individuals who had paid their “dues” by serving the community.  Many who shared this sentiment urged the appointment of Horace T. Ward.  Ward had been the first plaintiff to challenge segregation at the University of Georgia, had been part of the legal team that brought an end to that segregation, and had been part of the legal team which brought an end to the all-white jury pools that existed in some Georgia counties.  He had been the First African-American to serve on what was then called the Civil Court of Fulton County, and the first African-American to serve on the Superior Court of Fulton County.  He was known to agonize over sentencing decisions and, among all of his colleagues on the Fulton Superior Court, he had the lowest reversal rate.  He had been the second African-American to serve in the Georgia State Senate since reconstruction, and one of his State Senate colleagues was now President of the United States. 
Both of Georgia’s Senators frequently reached out to members of the community to gauge community sentiment with respect to these judicial appointments, either directly or through members of their respective staffs (including Curtis Atkinson from the staff of Senior Senator Herman Talmadge, and Tommy Dortch from the staff of Junior Senator Sam Nunn). Senator Talmadge had served as Governor at the time of Horace Ward’s unsuccessful application to the University of Georgia.  In a meeting with the President of the Gate City Bar Association, Senator Talmadge made it clear that he and Judge Ward had some "unfinished business" to take care of, and that the pending judicial appointments presented a suitable opportunity to take care of it.
In 1979, Atlanta hosted a meeting of the National Bar Association's Judicial Council, which was then chaired by Judge Ward. The luncheon speaker for the meeting was the American Bar Association's Immediate Past President William B. Spann, Jr., who took the occasion to urge the appointment of Judge Ward to the federal district court in Atlanta.
Later that year, Judge Ward became the only person of color to be nominated and confirmed to Georgia’s federal courts under President Carter.  In the neighboring State of Alabama, President Carter appointed two judges of color.

Wednesday, April 2, 2014

The Carter Approach to Crafting An Open and Transparent Judicial Selection Process

"Law: Here Come the Judges"
From Time Magazine
Monday, December 11, 1978
Who should choose them—and how?
Under U.S. law, the President picks federal judges with the advice and consent of the Senate. Under a practice known quaintly as senatorial courtesy, the process has traditionally worked the other way around. A Senator can blackball a nominee to the federal bench in his home state simply by returning a "blue slip" to the Senate Judiciary Committee. Senate colleagues invariably honor the blue slip, so Presidents long ago learned to let Senators do the choosing.
Not Jimmy Carter. Federal judges are too important to be political plums, Carter argued in his 1976 presidential campaign, and should be selected on the basis of "merit" alone. How? By appointing panels of lawyers and laymen to suggest qualified nominees. By whom is the final choice made? The President, of course.
The questions of who should pick federal judges and how merit should be made the standard have never been as hotly debated or as important as now. Last October Congress passed the Omnibus Judgeship Act, creating 152 new federal judgeships, the largest one-shot increase ever. Given normal turnover on the bench, half of the nation's 643 federal appeals and district judges will owe their jobs to Carter by the end of his term in 1980. Says Leonard Janofsky, American Bar Association president-elect: "No modern American President has had such an opportunity to mold the shape and character of the law in our justice system."
That is, if Congress lets him. Even before Carter took office, he got Mississippi's formidable James Eastland, then chairman of the Senate Judiciary Committee, to agree that federal appeals judges should be nominated by merit commissions. Eastland also promised that his committee would go along with the President's choices. But he balked when it came to the more numerous federal district judges. Instead of a Mississippi commission coming up with five names for a judgeship and the President choosing one, Eastland reportedly told Attorney General Griffin Bell: "I'll hand you a slip of paper with one name on it, and that'll be the judge."
Carter was left trying to persuade individual Senators to set up merit commissions. So far, Senators in 18 states have agreed. The Omnibus Judgeship Act empowers the Administration to establish "standards and guidelines" for choosing federal district judges. But as Attorney General Bell cautions, "They're not mandatory. It's more of a friendly persuasion operation."
A growing number of Senators are neither friendly nor persuaded. Missouri's Thomas Eagleton named three Missourians, without any merit commission and without inviting applications, despite Carter's urging of an open process. Carter and the Senate Judiciary Committee are left in an awkward position: If the Administration does not accept Eagleton's nominees, will the Judiciary Committee follow senatorial courtesy and reject anyone that Carter nominates instead for the Missouri spots? Says Bell: "Well, we plan to have a talk with the Senator." Virginia's Harry Byrd dutifully followed the open process by appointing two panels to nominate candidates for four new judgeships. The commission chose ten white males, prompting Associate Attorney General Michael Egan to point to a guideline that urges more blacks and women for the bench. Byrd stood by his list. Texas Senator Lloyd Bentsen refused to appoint a central nominating committee to consider candidates, preferring to rely on the advice of several different groups. Yet he paid close heed to Texas demographics: his ten choices include two women, one Mexican American and one black. Maryland's Senator Paul Sarbanes flatly refused to use any commissions. Though he invited "suggestions" from the public, Sarbanes proclaimed that he had the responsibility to "advise" the President by making the nominations himself. Editorialized the Washington Post: That's not "advising," that's "telling."
Perhaps the most articulate Senate critic of the commission system is Illinois' Adlai Stevenson, who also refused to follow Carter guidelines. The problem, according to Stevenson, is not in finding qualified people, but persuading them to accept the hard work and financial sacrifice of being a judge. Says Stevenson: "Great judges don't answer newspaper advertisements. They have to be sought out, and commissions can't do that."
Stevenson's warnings are borne out in part by the workings of one model nominating commission, that of Senator Edward Kennedy, the Judiciary Committee's new chairman. Few doubt the qualifications of the nominees picked last week by Kennedy's Massachusetts commission: a Harvard law professor, two state superior court judges (one is black) and a woman lawyer. But some desirable candidates dropped out when told they had to appear before the commission; they did not want to expose themselves to public scrutiny and possible rejection.
Stevenson argues that even though a Senator may not be the ideal person to choose a judge, any legislator at least represents and is accountable to the people. Besides, the quality of the present Senator-chosen federal bench is generally high, and some of the nation's most distinguished jurists had been politically active (including Hugo Black, Charles Evans Hughes, Louis Brandeis and John Marshall). Nor is politics ever going to be entirely expunged from judicial selection. The record of Democrat Jimmy Carter's own Administration is proof enough: of the 66 judges appointed since he took office, two are Republicans.