U.S. Supreme Court Considers Critical Issues of Racial Justice

The Supreme Court heard two cases during this term and agreed to review another next term that may result in setbacks for voting rights and affirmative action. One case involves voting rights, another focuses on affirmative action. The third case will consider "political structure Equal Protection" which prohibits state and local governments from imposing special burdens on minority groups' participation in the electoral process.

Voting Rights: Shelby County v. Holder

On February 27, 2013, the Supreme Court heard oral arguments in Shelby County v. Holder. The case involves a challenge to the constitutionality of the Voting Rights Act (VRA). Jurisdictions "covered” under Section 5 of the VRA must obtain authorization from the Justice Department before they can change their voting procedures. This requirement was  imposed on jurisdictions with long histories of severe voting abuses. In 2006 Section 5 was extended for 25 more years.

Shelby County claims the legislative record of the VRA's 2006 reauthorization lacks sufficient evidence of systematic voting discrimination in covered jurisdictions. The argument is conditions now are not what they were in the 1960s; that Section 5 is unconstitutional because it is no longer "congruent and proportional" to the problem it seeks to cure.

 In a 2009 case, Nw. Austin Mun. Util. Dist. No. One v. Holder, Chief Justice John Roberts declared the "exceptional conditions prevailing in certain parts of the country justified extraordinary legislation" in 1965, but those barriers no longer exist. Justice Clarence Thomas agreed. This prompted several challenges  to the VRA including this litigation.

In Shelby County the lower courts reviewed the evidence on which Congress relied when it reauthorized Section 5 in 2006. That evidence included thousands of pages of testimony, reports and data regarding racial disparities in voter registration, voter turnout, and electoral success; the nature and number of Section 5 objections; judicial preclearance suits and Section 5 enforcement actions. This included some old tactics and many new, "second generation" violations that are disenfranchising minority voters.

This record would ordinarily be sufficient to affirm the validity of Section 5. The well-established principle that the Supreme Court should "invalidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds." That is hardly the case with Section 5. However, during the oral arguments Justice Antonin Scalia dismissed this doctrine saying “[t]his is not the kind of question you can leave to Congress.” He also disparaged Section 5 as a "racial entitlement."

Pronouncements like these suggest the case could end with a majority striking down Section 5, although it is difficult to predict which side Justice Anthony Kennedy will join. Unlike Roberts, and Thomas, Kennedy may not be willing to strike down an act of Congress that does not plainly exceed the powers granted to Congress by the Fifteenth Amendment. His vote will likely determine the outcome of the case.

 
Affirmative Action: Fisher v. University of Texas

On October 10, 2012, the Supreme Court heard oral arguments in Fisher v. University of Texas. The challengers in Fisher are Texas residents who were denied admission to the class entering the University of Texas (UT) in 2008. They contend UT’s race-conscious admissions policies are unconstitutional because they go beyond promoting the educational benefits of diversity and seek to achieve a student body that reflects the of State of Texas' racial composition. This, they claim, is an unconstitutional effort to achieve racial balance.  

The challengers also argue that Texas did not give adequate consideration to race-neutral alternatives. Their other argument is minorities have already achieved a "critical mass" under the "Top Ten Percent" law, making additional efforts to promote diversity unnecessary.

Texas' admissions process divides applicants into three groups: Texas residents, domestic nonresidents, and international students. Students compete for admission against other students in their respective pools. Texas residents are allotted ninety percent of all available seats.

Under Texas' Top Ten Percent law, students with grades in the top tenth percentile of their high schools' graduating classes are automatically admitted. Applicants who are not in the top ten percent compete for admission based on their academic and personal achievement indices. The academic index is based on SAT scores and grades.

The personal index is based on a score awarded for of two required essays and a "personal achievement score" which represents a "holistic" evaluation of the applicant’s file. Race is considered as one element of the personal achievement score, but that is only one component of the total personal academic index.

To survive "strict scrutiny," the legal standard that applies to policies that classify on the basis of race, the government must have a "compelling justification" for doing so and the means chosen must be "narrowly tailored" to achieving a legitimate governmental interest. In 2003 in Grutter v. Bollinger, the Supreme Court applied strict scrutiny to affirm the constitutionality of University of Michigan's affirmative action admissions program.

Anthony Kennedy dissented from the outcome in Grutter because he believed Michigan's admission program was not narrowly tailored, but he made clear his support for efforts to promote student body diversity. He wrote "there is no constitutional objection to the goal of considering race as one modest factor among many others to achieve diversity."

In a 2007 case, Parents Involved in Community Schools v. Seattle School District, Justice Kennedy cast the deciding vote in a decision that struck down diversity plans for elementary and high schools in which race could be a “tie breaker” in determining who was assigned to a given school. Kennedy concluded that the assignment plan was not narrowly tailored but he wrote a separate opinion in which he affirmed his belief that governments can use race-conscious policies designed to promote diversity.

What Kennedy does not seem to like are selection procedures that allow race to be the deciding factor in who is admitted and who is not. At UT an admission decision could be different when applicants have identical attributes except for race. In such a case, race could be the deciding factor.

The final outcome in Fisher is difficult to predict. Since Justice Elena Kagan recused herself  only eight justices will participate. Four of them, Justices Antonin Scalia, Samuel Alito, Clarence Thomas and Chief Justice John Roberts have made it clear that they are opposed to all forms of affirmative action. This means the outcome depends on Kennedy, who has been unwilling to go that far.

A 4-4 tie would leave the Fifth Circuit’s decision upholding affirmative action intact. Another possible outcome would be similar to Parents Involved with Kennedy voting to strike down UT’s program as not narrowly tailored, but supporting affirmative action policies in which race is not the deciding factor. If Kennedy does not change his outlook on diversity, UT could lose but in a decision that would not outlaw all forms of affirmative action.

Political Structure Equal Protection: Schuette v. Michigan Coalition to Defend Affirmative Action

On March 5, 2013, the Supreme Court agreed to hear Schuette v. Michigan Coalition to Defend Affirmative Action. This case does not address the constitutionality of affirmative action policies. This is a political structure Equal Protection claim. The question in this case is whether a State Constitutional Amendment prohibiting the consideration of race in university admission decisions violates the Equal Protection Clause because it imposed a special burden on racial minorities in the electoral process.

The Michigan Civil Rights Initiative ("Proposal 2") amended the Michigan Constitution to prohibit "preferential treatment to any individual or group on the basis of race, sex, color, ethnicity, or national origin." A civil action was filed claiming that Amendment impermissibly altered the political process in violation of the Equal Protection Clause of the Fourteenth Amendment. Relying on Hunter v. Erickson (1969) and Washington v. Seattle Sch. Dist. No. 1 (1982), the Sixth Circuit held that Proposal 2 imposed a special burden on racial minorities in the electoral process that is not borne by other groups.

The Equal Protection Clause prohibits measures that require racial minorities to overcome more formidable obstacles to achieve their electoral objectives than those that apply to other groups. The "political structure" doctrine prohibits the government from creating an electoral structure that purports to treat all individuals as equals but distorts governmental processes in a way that imposes special burdens on the ability of minority groups secure beneficial legislation.

In Hunter v. Erickson, the Akron City Council enacted a fair housing ordinance prohibiting racial discrimination. The ordinance was subsequently amended to require approval by a majority of the City's voters before it could become effective. Under the city's normal legislative process, an ordinance took effect at specified time after its passage unless 10 percent of the electorate petitioned for a referendum. The challenged amendment made fair housing  ordinances more difficult to enact than other types of housing measures. The Court ruled that the amended ordinance violated the Fourteenth Amendment because it imposed a special burden on racial minorities that was not placed on other groups.

A similar conclusion was reached in Washington v. Seattle Sch. Dist. No. 1. In that case a statewide initiative was adopted to terminate mandatory busing to promote school desegregation. The initiative removed the authority of school boards to address racial problems in a way that burdened minority interests. Those favoring the elimination of de facto school segregation were required to seek relief  from the state legislature or from the statewide electorate. The authority over all other student assignment decisions remained with the local school board. The Supreme Court held the initiative violated the Equal Protection Clause because it imposed a special burden on racial minorities in the electoral process that was not borne by other groups.

The same reasoning was applied in Shuette. The Sixth Circuit ruled that when Proposal 2 amended Michigan's Constitution, it removed the authority to adopt affirmative action policies from Michigan’s universities and placed it at the state constitutional level. Proponents of race-conscious admissions policies are now required to obtain the approval of the Michigan electorate and, if successful, they must persuade university officials to adopt affirmative action policies. Proponents of other admissions policies need only obtain the support of the state's universities. This different and more difficult route for Michigan's racial minorities means they do not have an equal opportunity to participate in the policy making process.

 

This case will be decided during the next Supreme Court term which will begin on the first Monday in October in 2013. Given the record of the Roberts Court and Civil Rights, I am not optimistic. Identical challenges to Proposition 209, which outlawed affirmative action in California, were  rejected by the Ninth Circuit a number of times including, most recently, in Coalition to Defend Affirmative Action v. Brown (9th Cir., 2012). The Ninth Circuit found that Proposition 209 was constitutional because it addressed, in a neutral fashion, race-related and gender-related policies. The Court reasoned that Proposition 209 prohibited preferential treatment, not equal protection rights. The Supreme Court will probably take the same approach in Shuette.

About the Author

Leland Ware, a member of the Board of the Southern Regional Council, is Louis B. Redding Chair and Professor for the Study of Law and Public Policy at the University of Delaware.He is the author of numerous publications, and he served as co-editor of the recently-published volume, Choosing Equality: Essays and Narratives on the Desegregation Experience.

John Inscoe Receives Lillian Smith Book Award for 2012

John C. Inscoe is the Albert B. Saye Professor of History and University Professor at the University of Georgia, the Secretary Treasurer of the Southern Historical Association, and editor of The New Georgia Encyclopedia. He has published several works, Mountain Masters, and The Heart of Confederate Appalachia: Race, Ware and Remembrance in the Appalachian South.  But the book which attracted the attention of our jurors is Writing the South through the Self: Explorations in Southern Autobiography.

 

In a time when people tend to discount the regional authenticity of the South, Dr. Inscoe has let Southerners, African, Native, and European Americans speak for themselves. In the process they define themselves as being from distinct Southern regions and cultures. And who better to tell about who and what those are.  This endeavor relates so well to Lillian Smith’s quest to be heard as a Southern woman and human person. As each writer strives to give voice to self and region, we have to acknowledge Dr. Inscoe’s contributions to interethnic relationships and their importance in an ever-expanding world.

 

In highlighting the autobiographers’ establishing their voices and identities, Dr. Inscoe makes an important addition to showing the many faces of an identifiable South.  Teaching a course with this volume as textbook, one would move well beyond the duality of WEB DuBois’ dictum of 1903. Through the writings of the present authors, we gain the knowledge to move ahead in the changing South. And contemporary America which is exactly what Lillian Smith wanted us to do. In accepting the Lillian Smith Book Award, Professor Inscoe shared the following observations:

 

 

This book grows out of a course that I have long taught at UGA on Southern Autobiography as Southern History. Both the book and the course are based on the premise that autobiographers are or can be among the most astute chroniclers of the South, in part because Southerners are, I believe more so than most Americans, intrinsically linked to place and region, and they find their identity in both.  Lillian Smith certainly epitomizes that linkage more fully than most. Her classic Killers of the Dream, first published in 1948, s hardly a conventional memoir as such.  In fact, what makes it so compelling and so teachable is that she had such a flair for metaphor, for analogy, for parables, anecdotes, and other forms of literary expression, including references to her own childhood and adolescence, but used all of it to probe the Southern psyche - even as she so heartily condemned the region’s institutions and social practices at the time she was writing, to an extent that no other white Southerner in the mid-century was willing to do to the ex ent that she was. And she did it all with such great insight, passion, emotional fervor and often anger. And yet there was also a human humane dimension to her work that continues to make it so relevant and teachable.

But Smith is hardly alone in writing the South through the self.  Dozens of writers, black, white and both — I have a whole chapter on mixed-race identity and the struggles that authors have in identifying themselves with one race or another – together they found that they could make themselves and their identities better understood by setting their experience in the broader context of place – whether that meant the South as a whole, or more often through the particularities of households, families and communities. Thus, to read Southerners’ life stories is to find ourselves in churches, courtrooms and country stores, in classrooms, playgrounds, locker rooms, college campuses, in cotton, tobacco fields, plantation porches and slave quarters, tenant shacks, mountain cabins, trailer parks, and urban slums. We hear not only an author’s own voice; we also hear those of his or her parents, the grandparents, siblings, teachers, professors, employees, co-workers, both benefactors and oppressors.

Friends and foes, are brought vividly to life in the most skillfully constructed of these narratives. And through this cacophony of voices and viewpoints, we are exposed to a range of temperaments and perspectives well beyond those of the writer himself.  We can learn a great deal about white rationales for slavery or Jim Crow from the viewpoint of black authors who lived under those regimes. Poor whites often come to life through the words and deeds of their socio-economic betters. And women can tell us an awful lot about men, whether they raise them, marry them, exploit them or support them. I’m not sure that men do as well with women.

The other key factor that makes these works so accessible and so memorable is that Southerners tend to privilege storytelling, dramatic turning points, and cathartic and revelatory moments and pack them with meaning, insight and feeling, sometimes well beyond anything intended by the authors. As Flannery O’Connor once noted, “The Southerner knows he can do more justice to reality by telling a story than he can by discussing problems or proposing abstractions. It’s actually his way of reasoning and dealing with experience.”   And again, no one did so more deftly or to fuller effect than Lillian Smith, who used her story-telling skills to fuse self with South in such creative and often startling ways.

But many others have done so as well, and I try to use their writings to get at a variety of subtle and not so subtle truths about the region and the society that they claimed as their own.

Just a few examples: Where else except through autobiography could we get Pat Conroy’s account of how his black students at Beaufort, South Carolina, High School all but attacked him in expressing their grief and anger over the news or Martin Luther King’s assassination  in April, 1968?

Or of Dianne McWhorter’s discovery that her father was a Klansman in Birmingham who may well have been involved in the Sixteenth Street Baptist Church bombing in 1963 that killed four young girls attending Sunday school?

Or of Morris Dees, who tells of his attempt, only one week after that, to lead a prayer for the souls of those little girls I      n his home church in Montgomery, Alabama, which led to a massive walk-out by most of that congregation?

In the descriptions by Maya Angelou, by Jimmy Carter, by Russell Baker, of local African American celebrations of radio broadcasts of Joe Louis  1930s victories over white opponents, as they witnessed them in Plains, Georgia, Stamps, Arkansas, and Baltimore, respectively?

Anne Moody, John Lewis, Virginia Spencer, William Morris and others have recounted how traumatized they were as adolescents to the news of the brutal lynching of fourteen year old Emmett Till in Mississippi in 1955, and yet no two of their responses were remotely alike. Lillian Smith, who was hardly an adolescent in 1955, in some ways had the most unique response to that crime, at least that I know if.

Where else could we see Seventh Grader Charles March on the first day of the 1970 school year in Laurel Mississippi as his junior high school integrated for the first time, wearing his most fully-padded winter coat to guard against the attacks he anticipated from his new black classmates, and the reasons he found out that he didn’t have to bundle up on the second day?

Or see sharecropper Mae Bertha Carter collapse on her bed and pray every day for several weeks as she sent several of her children off on a school bus to enroll as the only black students in the white schools of Sunflower County, Mississippi in 1965, and only come to life again as she counted all seven as they got off that bus at the end of the day, as she related to Connie Curry in Silver Rights, her classic account of that ordeal?

Or to hear Henry Louis Gates admit that there are aspects of segregation that he and his family missed when it ended, most notably the sense of security and camaraderie and even cuisine, that the Jim Crow railroad cars offered, where they freely ate the sumptuous picnics they brought, played cards, sang and socialized, all of which was lost when they gained the privilege of sharing that space with white passengers?

Or to read Walter White’s harrowing account of being caught up in downtown Atlanta at age thirteen with his postman father as the infamous 1906 race riot broke out, and of their preparations to defend their home as the white mob moved into their neighborhood the following day?

Or Catherine Dupree Lumpkin’s admission of ambivalent feelings, including sheer exhilaration, upon seeing the Birth of a Nation while a student at Breneau College in Gainesville?

Or the intrepid Delaney Sisters, Sadie and Bessie who, at over 100 years of age, recall their own participation in NAACP protests over that same film’s re-release n New York City in the 1930s?

Or to walk with Charlayne Hunter-Gault through the Arch at the University of Georgia on that January day in 1961, and follow with her the highs and lows of her first few days and those of Hamilton Holmes as they became the first African Americans to attend the State’s flagship university?

Or hear Ralph McGill admit that the two most effective though decidedly unofficial mentors he knew during his freshman year at Vanderbilt in the late 1940s were black men, one the janitor in his dormitory, and the other a part of a road crew with whom McGill worked on a summer job in Chattanooga?

Or Rick Bragg’s revelation in covering the Susan Smith story in South Carolina that his mother realized well before he the journalist did that no mother would abandon her two small children to a black man ordering her out of her car, as Smith claimed before the truth ultimately came out that she killed them herself, and all for a chance to move up a bit in the social strata of a sleepy mill town?

Or to see the impact of Katrina brought home through Natasha Trethewey’s beautifully rendered account of her Gulfport-based brother and grandmother, and the very different trials and tribulations it inflicted on each of them? 

Each of these episodes makes for eminently teachable moments, both individually and collectively, and they never fail to engage students and generate lively classroom discussions about race, class, kinship, place, justice and injustice. As a genre, memoir and autobiography alone can render so much of our shared history as Southerners in such personal, intimate, and ultimately profound ways.  

I’ll let Lillian Smith have the last word here. In response to critics who suggested that she was too passionate in her analysis of Southern society, she wrote to her publisher regarding the revised edition of Killers of the Dream in 1961:  “Too much feeling,” she wrote, “perhaps. I could strip off a little of the pain, rub out a few words, but no, let’s leave it. For this may be the most real part of the book.”  There is, indeed, the most real part of many of these narratives, in large part because they can face so fully what Richard Wright once called his “crossed up feelings,” his “psychic pain.”   Or what Fred Hopson has so aptly termed “the Southern rage to explain.” It is the emotional resonance, the psychological subtext and, again, the sheer humanity that pervades these self-told narratives that allows for levels of empathy, sympathy and understanding on the part of students in ways that no textbook or scholarly monograph can duplicate.  I always hope that, through their exposure to a wide range of these works, students will come to see and appreciate the South and its past in far richer and more compelling ways. It is what I also hope that readers will take from this book.

 

Tomiko Brown-Nagin Receives Lillian Smith Book Award for 2012

In 1966 Julian Bond, in the face of blistering criticism for his opposition to the Vietnam War, said “I hope that throughout my life I shall always have the courage to dissent." It is from this statement that Tomiko Brown-Nagin takes the title of her Lillian Smith award-winning book, Courage to Dissent: Atlanta and the Long History of the Civil Rights Movement.

 

Tomiko Brown-Nagin is a professor of law and history at Harvard University, and she previously held appointments at the University of Virginia and Washington University. Dr. Brown-Nagin earned her Ph.D in history from Duke, a law degree from Yale (where she served as editor of the Law Review), and a Bachelor’s Degree from Furman.

 

Tomiko Brown-Nagin has written a remarkable and highly praised book in Courage to Dissent. It is a bottom-up narrative, illuminating the parts played by local activists and attorneys. These were people whose courage to dissent applied, not only to the white establishment, but also to the traditional black leadership of Atlanta, the national civil rights movement, and the NAACP Legal Defense Fund’s high-profile attorneys.  Their dissention, Dr. Brown-Nagin argues, created an intra-racial tension that helped to energize the movement in Atlanta.

 

In a review of Courage to Dissent, Kathryn Naistrom writes that the book succeeds brilliantly, both as narrative history and legal analysis.  For Lillian Smith Book Award winner Ariela Gross, Brown-Nagin’s work heralds a new kind of constitutional history – that it’s a book that tells the stories of the good fight waged by ordinary people who, whether or not they actually won, had their day in court and became agents of change.

 

In March 2012 Columbia University announced that Courage to Dissent would receive the 2012 Bancroft Prize.  In accepting the Lillian Smith Book Award, Professor Brown-Nagin shared the following observations:

The book is subtitled Long History of the Civil Rights Movement, which means that it hopes to complicate the narrative of the civil rights movement that we have grown accustomed to – a narrative that centers on the brilliance of Thurgood Marshall and the Legal Defense Fund and the heroics of the Warren Court. When I started this work many years ago a lot of people were resistant to the thrust of the work. They said: Brown v. Board of Education was American’s finest hour; Why would you want to tell a story in which that case is not central to the story? But I think it takes nothing away from the brilliance of Thurgood Marshall and the heroics of the court to talk about people on the left and the right who thought in terms of something more complicated than integration when they thought about equality, people like Julian Bond, Lonnie King, Lynn Holt, and Ethel Mae Matthews.  It’s important to realize the agency that they had and how they, along with these national institutions helped to form a more perfect union. 

Although I eventually came around to thinking of all of the wonderful people in this book as dissenters, when I first started this book I was just as beholden to the traditional narrative as anyone else. I went to law school because of Thurgood Marshall.  I am a child of Brown v. Board of Education. And so the process of writing this book was a conscious effort on my part to be fair to all of the characters in my book, despite their many perspectives, some of which I originally couldn’t understand and didn’t necessarily like.

Len Holt, a lawyer with the Lawyers Guild, an organization that was tainted as a Communist organization, hasn’t received his due.

 

Ethel May Matthews was a warrior for civil rights whom I interviewed in the housing projects of Atlanta, who taught me more than virtually anyone about the struggle against Jim Crow and the class dynamic.

One person in the book who symbolized my professional struggle was A.T. Walden. The son of slaves and one of the South’s first African America lawyers, Walden had been understood as a conservative, a foil of the students and progressives.  He was called an Uncle Tom and, when I first came to this work, I frankly understood why he would have been called those names.  He was skeptical, and he never embraced school desegregation or direct action. 

 

But as I wrote the book, as I went to the archives and did a lot of digging, I learned his history: that he was a complicated man who had been moved to go to law school after seeing the lynched body of a black man in his home town.  I learned that he was a student of W.E.B. DuBois, a man whom he considered a prophet and a seer. I came to understand that his critique of the struggle for integration as only being about integration and school desegregation was in many ways similar to Dubois’ critique.  Over time, I came to understand that, in order to write a nuanced narrative of the civil rights movement, it is important to appreciate how much history is biography.

Judicial Diversity Aids Legitimacy



Judges on UGA panel agree that public confidence is enhanced when courts reflect the faces of the public.

[Reprinted from the Daily Report, March 4, 2013]

 

By Greg Land

 

DeKalb County State Court Judge Dax Lopez said that, even as a Latino who spent most of his life in Georgia, he was surprised to learn just how dismissive some of his fellow jurists could be toward minorities and immigrants.

 

"Coming to the bench as a really young judge - I was 34 - my first judges' meeting was a real eye-opening experience," said Lopez. As he listened to judges from some of the state's rural circuits discuss their courtroom practices, he was struck by attitudes that ranged from indifference to hostility toward such defendants.

 

"There was zero sympathy," said Lopez, and some judges boasted that they actively sought to ensure the harshest outcome possible,

 

"It was like, 'I'm going to affirmatively hurt this person,'" recalled Lopez, appointed to the bench in 2011.

 

Lopez spoke at a panel Thursday at the University of Georgia School of Law. Diversity on the bench was the topic for the panel, which also included Georgia Supreme Court Justice Harold Melton, state Court of Appeals Judge Anne Elizabeth Barnes, Athens-Clarke County Chief Magistrate Judge Patricia Barron and moderator Robin Frazer Clark, president of the State Bar of Georgia.

 

Teeing up the issue, Clark cited a column that former Georgia Chief Justice Leah Ward Sears wrote for the Daily Report last year decrying the lack of diversity on the bench. Of 464 judgeships statewide, wrote Sears, about 100 were occupied by women, 53 by African-Americans, and—at that time—one was Asian and one Hispanic. (Governor Nathan Deal has since appointed an Asian-American woman, Carla Wong McMillian, to the Court of Appeals.)

 

Do the varied life experiences offered by one's race or sex really matter when it comes to fulfilling one's duties as a judge, asked Clark, and is a diverse bench necessarily a good thing?

 

Barron, whose circuit's bench is evenly divided between male and female judges, noted that she is the only African-American judge serving the Athens-Clarke County community at present. Diversity on the bench, she said, is more than a "good and desired" goal: "it has to do with the ability of the court to represent the population."

 

"I think the public's confidence in any court is enhanced by the ability to reflect the community," agreed Lopez. Among DeKalb's judges, he said, "we have seven judges who speak five different languages, one of only two Asian judges in the state, and the only Hispanic."

 

"I think it gives us a lot of credibility as a court," said Lopez.

 

Melton said that while the appellate courts are, in Clark's words, "some steps removed" from the general public, it is equally important that they, too, reflect the faces of that public. "Sometimes," he said, "the only evidence they have is looking at the snapshot of that court."

 

Melton also addressed complaints that, under the current and past administrations, minority appointments to the bench have been few and far between.

 

The justice, who served as executive counsel to Governor Sonny Perdue before being appointed to the state's high court, agreed that Georgia's first Republican governors since Reconstruction have appointed fewer African-Americans to the bench than their Democratic predecessors.

 

"One thing we need to talk about is party diversity," said Melton. "I know there's a lot of conversation about that. One conversation is, 'What's the governor going to do?' We need to ask, What are ???we going to do?'"

 

"There's a lot of discouragement in the African-American community about working with Republicans. I saw that in the governor's office first-hand," Melton said. The only time the governor heard from African-American lawyers or bar associations was when a judgeship came open, he said; meanwhile, other lawyers and organizations had been working to make contacts and establish relationships with the administration.

 

"So others have been working diligently, and you're at a disadvantage if you take a hands-off approach."

 

"I'm not saying we should compromise our views," said Melton, "but we should be more involved."

 

Barnes, too, said a lack of diversity on the bench could shadow the courts' legitimacy in the eyes of the public.

 

"It's not just that the fact that judges are fair and impartial," Barnes said. "When we see a panel of people that don't look like us, and they all look like each other, it affects the perception of the public. If they see someone on the bench and say, 'Hey, she looks like me,' I think it enhances the perception of justice."

 

Clark recalled the furor stirred up during the confirmation hearings for U.S. Supreme Court Justice Sonia Sotomayor when senators read the text of a speech she gave in 2001.

 

"Personal experiences affect the facts that judges choose to see," said Sotomayor in the speech. "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."

 

"Many called those words provocative, and I would agree," said Clark. But, she asked, "if we agree that it is diversity we desire," will a judge's background and experiences shade what a judge "chooses to see"?

 

Nodding vigorously, Barron noted that her magistrate duties frequently placed her in a position of hearing cases over simple assaults involving low-income, African-American women fighting, often over a man.

 

"My experiences as an African-American woman help me understand that behavior," said Barron. "Were I not there, those women would probably not have been listened to, maybe not even represented in court, and the outcome may have been different."

 

"Everyone is responsible for their actions, of course," she said, but "in the 12 years I've been on the bench, I think there's been a transition because of my background."

 

Barnes said she didn't find Sotomayor's comments controversial, because she thought they had been misconstrued.

 

"I focus on the word 'wisely,'" she said. Barnes recalled her history as the first woman to win statewide election to the bench without having first been appointed. While some of her friends were very supportive, she recalled, others dismissed her chances; when her first bid came up short, she said, she tried again and won.

 

"I think what Justice Sotomayor was driving at is that we all have experiences." The key, she said "is whether we gain wisdom from our experiences."

 

Failure to do so, Barnes said, may result in a legal judgment that doesn't reflect justice.

 

"It may be legally correct," she said, "but it won't be just."

Tennessee Law Requires Diverse Judicial Nominating Committee

17-4-102.　　Judicial nominating commission -- Establishment -- Membership -- Appointments -- Application for commission membership.

　　(a)　There is established as a part of the judicial branch of the state a judicial nominating commission, to be composed of seventeen (17) members as follows:

　　　(1)　Eight (8) members shall be appointed by the speaker of the senate;

　　　　　　(A)　Two (2) of the members shall be appointed from each of the state's three (3) grand divisions, and the remaining two (2) members shall be appointed at-large; and

　　　　　　(B)　At least five (5) of the members shall be attorneys;

　　　(2)　Eight (8) members shall be appointed by the speaker of the house of representatives;

　　　　　　(A)　Two (2) of the members shall be appointed from each of the state's three (3) grand divisions, and the remaining two (2) members shall be appointed at-large; and

　　　　　　(B)　At least five (5) of the members shall be attorneys;

　　　(3)　One (1) non-attorney member shall be appointed at-large by joint action of the speaker of the senate and the speaker of the house of representatives; and

　　　(4)　Not more than three (3) of the members appointed at-large may be residents of the same grand division.

(b)　　(1)　The entire membership of the judicial selection commission shall be vacated and shall be replaced by new appointments made to the judicial nominating commission pursuant to this section. In order to stagger the terms of the newly appointed commission members, initial appointments shall be made as follows:

　　　　　　(A)　Two (2) of the speaker of the senates's initial appointments shall be made for terms of two (2) years each;

　　　　　　(B)　Two (2) of the speaker of the house's initial appointments shall be made for terms of two (2) years each;

　　　　　　(C)　The speakers' joint appointment shall be made for a term of two (2) years;

　　　　　　(D)　Three (3) of the speaker of the senate's initial appointments shall be made for terms of four (4) years each;

　　　　　　(E)　Three (3) of the speaker of the house's initial appointments shall be made for terms of four (4) years each;

　　　　　　(F)　Three (3) of the speaker of the senate's initial appointments shall be made for terms of six (6) years each; and

　　　　　　(G)　Three (3) of the speaker of the house's initial appointments shall be made for terms of six (6) years each.

　　　(2)　Thereafter, the terms for all appointments shall comply with §§ 17-4-106 and 17-4-107(a).

(c)　In making the appointments to the judicial nominating commission, each speaker shall do so with a conscious intention of selecting a body that reflects diversity with respect to:

　　　(1)　Race, including the dominant ethnic minority population;

　　　(2)　Gender; and

　　　(3)　Representation of rural areas as well as urban centers.

(d)　The administrative office of the courts shall develop and post on its web site a downloadable information and application form for citizens who wish to be considered for appointment to the judicial nominating commission. The form shall indicate all qualifications required for appointment to the commission. To be considered for appointment, each applicant must complete, sign and submit the form. Appropriate deadlines for submission of the forms shall be established by the administrative office of the courts in advance of each scheduled vacancy and promptly after the occurrence of any unscheduled vacancy. Each time that deadlines are so established, in addition to notice posted on its web site, the administrative office of the courts shall take appropriate action to notify the general public and shall provide written notification to the speaker of the senate and the speaker of the house of representatives. Immediately following the occurrence of any such deadline, the administrative office of the courts shall post on its web site a summary report of all qualified applicants for the vacant position or positions. The summary report shall include at least the name, county of residence and occupation of each applicant. For a period of fourteen (14) days following the posting of the summary report, the administrative office of the courts shall receive public comments from interested persons and organizations. At the conclusion of the period for public comments, the application forms and corresponding public comments shall be forwarded to the appropriate speaker or speakers for consideration and action. Within fourteen (14) days following receipt of the information, the speaker or speakers shall make the required appointments from the pool of qualified applicants. However, for good cause, either speaker may fill a vacancy by appointing a qualified person not included within the pool of applicants if the speaker provides written notice to the administrative office of the courts stating the reasons for appointing a person not included within the pool of applicants.

HISTORY: Acts 2009, ch. 517, § 1.

Georgia Should Codify its Pursuit of Judicial Diversity



[Reprinted from the Daily Report, October 4, 2012]



To the Editors:

We note with interest an article by Leah Ward Sears and Kimberly Bourroughs which appeared in the Sept. 24, 2012, issue of the Daily Report entitled "Raise the bar on judicial diversity." While we concur with the sentiments expressed in the article, we respectfully disagree that the recent gathering at the courthouse steps was an expression of "anger." Rather, it was a concerted effort by minority bar associations and community-based organizations to bring an important issue to the public's attention.

Moreover, we would add that judicial accountability requires that the courts be representative of the communities that they serve. Judicial diversity also promotes impartiality by ensuring that all viewpoints, perspectives and values are part of the decision-making process.

The recent article was particularly commendable in proposing steps that can be taken in pursuit of the goal of a more representative judiciary, especially in addressing the lack of diversity on Georgia's Judicial Nominating Commission ("JNC"). Not long ago, the Georgia Association of Black Women Attorneys asked Governor Nathan Deal to diversify the JNC, but since then there has been no change in the diversity of its membership. The JNC still has only one African-American male, no African-American females, and no other persons of color among its 15 members. In 2012, this lack of representation does a disservice to the state's highly diverse populace.

Beyond the steps toward increasing judicial diversity which were suggested in the recent article, Georgia should also consider some of the more recent steps which other states have taken to pursue this goal. For example, Arizona has a constitutional provision requiring its judicial nominating commission to "consider the diversity of the state's population, however, the primary consideration shall be merit." Ariz. Const. Art.VI, § 36.

Maryland has an executive order which requires that its nominating commission "shall consider … the importance of having a diverse judiciary." Md. Exec. Order No. 01.01.2007.08.

In Missouri, the governing Supreme Court rules direct that "the Commission shall further take into consideration the desirability of the bench reflecting the racial and gender composition of the community." Mo. S. Ct. R. 10.32(f) (2008).

Several other states have laws that mandate diversity in the composition of their judicial nominating commissions. Florida, for example, requires that "the Governor shall seek to ensure that, to the extent possible, the membership of the Commission reflects the racial, ethnic, and gender diversity, as well as the geographic distribution of the population within the territorial jurisdiction of the Court for which nominations will be considered." Fla. Stat. Ann. § 43.291(4) (2008).

Tennessee law requires the appointment of "persons who approximate the population of the state with respect to race, including the dominant ethnic minority population, and gender." Tenn. Code Ann. § 17-4-102(C) (2008) Rhode Island provides that "[t]he Governor and the nominating authorities hereunder shall exercise reasonable efforts to encourage racial, ethnic, and gender diversity within the Commission." R.I. Gen. Laws § 8-16.1-2(a)(3) (2006).

We do not wish to displace the recommendations advanced by Justice Sears and Ms. Bourroughs. However, we suspect that actually codifying the state's pursuit of judicial diversity, as these other states have done, might enhance the likelihood of producing positive results.

Suzanne Wynn Ockleberry, Past President, Georgia Association of Black Women Attorneys
Charles S. Johnson, Past President, Gate City Bar Association

Tomiko Brown-Nagin Receives Lillian Smith Book Award for 2012

In 1966 Julian Bond, in the face of blistering criticism for his opposition to the Vietnam War, said “I hope that throughout my life I shall always have the courage to dissent. It is from this statement that Tomiko Brown-Nagin takes the title of her Lillian Smith award-winning book, Courage to Dissent: Atlanta and the Long History of the Civil Rights Movement.

Tomiko Brown-Nagin is a professor of law and history at Harvard University, and she previously held appointments at the University of Virginia and Washington University. Dr. Brown-Nagin earned her Ph.D in history from Duke, a law degree from Yale (where she served as editor of the Law Review), and a Bachelor’s Degree from Furman.

Tomiko Brown-Nagin has written a remarkable and highly praised book in Courage to Dissent. It is a bottom-up narrative, illuminating the parts played by local activists and attorneys. These were people whose courage to dissent applied, not only to the white establishment, but also to the traditional black leadership of Atlanta, the national civil rights movement, and the NAACP Legal Defense Fund’s high-profile attorneys.  Their dissention, Dr. Brown-Nagin argues, created an intra-racial tension that helped to energize the movement in Atlanta.

In a review of Courage to Dissent, Kathryn Naistrom writes that the book succeeds brilliantly, both as narrative history and legal analysis.  For Lillian Smith Book Award winner Ariela Gross, Brown-Nagin’s work heralds a new kind of constitutional history – that it’s a book that tells the stories of the good fight waged by ordinary people who, whether or not they actually won, had their day in court and became agents of change.

In March 2012 Columbia University announced that Courage to Dissent would receive the 2012 Bancroft Prize.

In accepting a Lillian Smith Book Award for 2012, Professor Brown-Nagin remarked as follows:

 

 

"The book is subtitled Long History of the Civil Rights Movement, which means that it hopes to complicate the narrative of the civil rights movement that we have grown accustomed to – a narrative that centers on the brilliance of Thurgood Marshall and the Legal Defense Fund and the heroics of the Warren Court. When I started this work many years ago a lot of people were resistant to the thrust of the work. They said: Brown v. Board of Education was American’s finest hour; Why would you want to tell a story in which that case is not central to the story? But I think it takes nothing away from the brilliance of Thurgood Marshall and the heroics of the court to talk about people on the left and the right who thought in terms of something more complicated than integration when they thought about equality, people like Julian Bond, Lonnie King, Lynn Holt, and Ethel Mae Matthews.  It’s important to realize the agency that they had how they, along with these national institutions helped to form a more perfect union.

"Although I eventually came around to thinking of all of the wonderful people in this book as dissenters, when I first started this book I was actually just as beholden to the traditional narrative as anyone else. I went to law school because of Thurgood Marshall.  I am a child of Brown v. Board of Education. And so the process of writing this book was a conscious effort on my part to be fair to all of the characters in my book, despite their many perspectives, some of which I originally couldn’t understand and didn’t necessarily like.

"Len Holt was a lawyer with the Lawyers Guild, which was tainted as a Communist organization, and who hasn’t received his due.

"Ethel May Matthews was a warrior for civil rights whom I interviewed in the housing projects of Atlanta, who taught me more than virtually anyone about the struggle against Jim Crow and the class dynamic.

"One person in the book who symbolized my professional struggle was A.T. Walden. The son of slaves and one of the South’s first African America lawyers, Walden had been understood as a conservative, a foil of the students and progressives.  He was called a conservative and an Uncle Tom and, when I first came to this work, I frankly understood why he would have been called those names.  He was skeptical, and he never embraced school desegregation or direct action. But as I wrote the book, as I went to the archives and did a lot of digging, I learned his history: that he was a complicated man who had been moved to go to law school after seeing the lynched body of a black man in his home town.  I learned that he was a student of W.E.B. DuBois, a man whom he considered a prophet and a seer. I came to understand that his critique of the struggle for integration as only being about integration and school desegregation was in many ways similar to DuBois’ critique.  Over time, I came to understand that in order to write a nuanced narrative of the civil rights movement, it is important to appreciate how much history is biography."