SPECIAL REPORT: Bush Failure to Appoint More Black Judges is a ‘Travesty’

By. Hazel Trice EdneyNNPA Washington Correspondent WASHINGTON (NNPA) – President Bush’s attempt to elevate U.S. District Judge Charles Pickering Sr. to U.S. Fifth Circuit Court of Appeals was one of the most contentious fights in decades. As a college student, Pickering had supported the state’s law prohibiting interracial marriages. As a state legislator, he had voted to fund the Mississippi State Sovereignty Commission, a body established to secretly spy on and intimidate civil rights activists, and co-sponsored a resolution calling for Congress to repeal part of the Voting Rights Act.And as a federal judge, Pickering had been reversed by the conservative 5th Circuit – the very court Bush wanted to appoint him to – 15 times over a 10-year period, with most of the cases involving civil rights, constitutional, criminal procedure or labor issues. In an effort to overcome strong opposition from dozens of civil rights groups, Pickering’s son, Congressman Charles Pickering Jr.[R-Miss.], pledged that if the senior Pickering were elevated to the appeals court, an African-American would replace him on the District Court in Mississippi. On a straight party-line vote, the Pickering nomination was forced out of the Senate Judiciary Committee. On the floor, it was filibustered by Democrats, effectively killing the nomination.To circumvent the Senate, which has the constitutional responsibility to reject or approve all federal judicial nominations, Bush elevated Pickering in January with a recess appointment, bypassing the Senate but limiting the time that Pickering can serve in the “temporary” position until the next Congress is convened. Rather than replace Pickering with an African-American – as his son had promised – President Bush has nominated Pike County Circuit Judge Keith Starrett, a White male. Mississippi, with a Black population of 36 percent, the largest in the nation, has had only one African-American to serve as a federal judge (Henry Wingate was appointed 20 years ago).Selecting yet another conservative White male to the federal bench in the South – where 55.3 percent of all African-Americans live – is part of what civil rights groups view as a larger and more disturbing pattern. For example, Louisiana has a Black population of 33 percent, second only to Mississippi. Of the six federal judges appointed by Bush, none were African-American. South Carolina has a Black population of 30 percent. Of the three judges appointed by Bush, none were African-Americans. Georgia, with a Black population of 29 percent, received three Bush appointments, none of them Black. Alabama has a Black population of 26 percent. In that state, seven federal judges were appointed by Bush, all of them White. While the discrepancies are glaring in the South, they are by no means limited to that region. African-Americans in Maryland, for example, constitute 28 percent of that state’s population. Yet, none of the three Bush appointees are Black. Overall, 200 Bush appointees have been confirmed to the federal bench; only 15 or 7.5 percent of them are African-Americans. And seven of the 15 were replacing other Blacks leaving the bench. When Congress recessed Tuesday, there were 26 nominations pending, according to the Senate Judiciary Committee, none of them African-Americans.”This, in my judgment, is the sleeper issue of the current election,” says Wade Henderson, executive director of the Leadership Conference on Civil Rights, a coalition of more than 180 human and civil rights groups. “These judges have no contact and no appreciation for how the issues of every day life are affected by the decisions that they will render. And so it really is a real travesty.” Conservatives oppose what they call “activist” judges, a description they give to jurists who believe “legislate from the bench.” The role of judges is to interpret the U.S. Constitution and applicable laws. Article 2 of the U.S. Constitution provides for the president nominating federal judges. To provide a check on the powers of the executive branch of government, the Senate serves in the role of “advice and consent, meaning the appointments become effective only if the Senate approves. The judges are given lifetime appointments to insulate them against political pressures.”When people are appointed they serve for life,” explains Mary Frances Berry, chair of the U.S. Commission on Civil Rights and an expert on constitutional law. “They make these decisions about our lives, whether it’s employment discrimination, or whether it’s injuries on the job that violate workplace laws or education, as we saw in the University of Michigan affirmative action case. Whatever it is, who is on the court is really fundamental in terms of the quality of our lives.”A detailed study titled, “Ideological Voting on Federal Courts of Appeals: A Preliminary Investigation,” published last year by the AEI-Brookings Joint Center for Regulatory Studies, supports Berry’s view.An examination of more than 4,400 legal opinions, involving politically divisive issues, concluded that appeals judges overwhelmingly decided cases according to the philosophical position of the party that appointed them.On the issue of affirmative action, for example, the study, conducted by Cass R. Sunstein, David Schkade, and Lisa Michelle Ellman, reports: “From 1980 through 2002, Republican appointees cast 267 total votes, with 127, or 48 percent, in favor of upholding an affirmative action policy. By contrast, Democratic appointees cast 198 votes, with 147, or 74 percent, in favor of upholding an affirmative action policy. Here we find striking evidence of ideological voting.”According to Legal Defense and Educational Fund, 200 of Bush’s appointees have been confirmed, only 15 of them Black (7.5 percent). Moreover, seven of the 15 were replacing other African-Americans. Clinton, in his first term alone, appointed 33 Black judges out of 170, nearly 20 percent. In his second term, with a Republican majority in the Senate, Clinton still appointed 20 Black judges out of 137 or 14 percent. Clinton’s 53 Black appointments rank him ahead of second-place Jimmy Carter, who appointed 39 African-American judges. Much of the progress in appointing Black judges is being eroded, court watchers say.According to the Alliance for Justice, a Washington-based group that works to maintain an independent judiciary, Republican appointees represent 53 percent of the federal judiciary. They are a majority in 10 of the 13 federal circuits and are expected to control all but one circuit by the end of the year. Retired Sixth U. S. Circuit Judge Nathaniel R. Jones of Ohio, former general counsel of the NAACP in the 1970s, says African-Americans have not been active enough in helping preserve an independent judiciary.”This is not on the radar screen,” says Jones, a Jimmy Carter appointee. “It’s hard to get traction because there’s just a feeling that this is not a productive political fight to have.” However, he disagrees with that thinking, adding: “You’ve got to go into the home districts of these senators. They’ve got to feel the fire, feel the heat. Unless this issue is raised, unless the temperature is turned up on it, then they’re going to skate.”Leslie M. Proll, assistant counsel to the NAACP Legal Defense and Educational Fund, says, “A lot of different communities have raised their own awareness, and, at the same time, have helped to educate the Senate that these issues are important. I think that communities have an opportunity and even responsibility to participate in this process.” A key issue is the expected Supreme Court vacancies. Most recent civil rights victories, such as in the University of Michigan affirmative action case, have been decided by 5-4 votes. However, the next president is expected to name three, possibly four, justices, appointments that will alter the fabric of the court for perhaps the next half-century. President Bush has already stated that he will appoint justices in the philosophical mold of Clarence Thomas and Antonin Scalia, the two most conservative members on a conservative Supreme Court. His opponent, John Kerry, has pledged to appoint moderate judges sensitive to the need for affirmative action and protecting civil liberties. As important as the Supreme Court appointments will be, it is also important what kind of judges are appointed at the federal District Court and Appeals level. Of the 8,000 to 9,000 cases appealed to the Supreme Court each term, for example, no more than 100 cases are accepted for review.”What is at stake in the fight over judicial nominations is the continued ability of Congress to protect our civil rights and fundamental freedoms: the right to be free from discrimination based on race, national origin, religion, gender, sexual orientation, or disability; the right to organize in a union and be protected by national labor standards; the right to clean air and water; and the right to equal opportunity in employment and education for all Americans,” says a report by the Leadership Conference on Civil Rights, titled “Turning Right: Judicial Selection and the Politics of Power.” It concludes, “While many have fought for years for these rights, they are not secure without a federal judiciary ready to stand vigilant to protect them.”Now free to speak his mind now that he is retired, Judge Jones says: “What Bush has done is scandalous. It’s obscene. Yet, he prances around and kisses little Black kids and hugs these Black preachers and thinks he can get over for what he’s done to the federal judiciary,” Jones says. “It’s a precarious situation and an acute situation and if the election goes the wrong way, if Bush is re-elected, we’re going to have more of the same.”