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The Judiciary

The Federal Judiciary Urgently Needs Attention — Now

Say the phrase “first Monday in October” to an avid watcher of the American courts, and he is likely to proclaim it is one of the most important dates on the calendar. That is because it is the congressionally mandated day the United States Supreme Court reconvenes every year to start a new term. October 4 marked the occasion this year. And as has happened since he left the court in 1991, my mind turned to the late Justice Thurgood Marshall and the example he left the people of this country.

In April, I made the point in a Politico column that we needed another Marshall on the Supreme Court, now. I couldn’t feel more convicted in that sentiment almost six months later.

It would be a disservice to Marshall’s legacy to suggest that he was concerned only with the plight of African Americans. During his years fighting for equality, he sought to end our nation’s injustices for the benefit of all its people. Legal scholars and historians would be among the first to support such a claim. Whether it concerned the rights of the working man and women, sexual or gender considerations, senior citizens or any of those within the woven fabric that is America, he was there demanding action for the dispossessed.

Marshall’s absence left a void — and Clarence Thomas would be the first tell you that he didn’t and doesn’t consider fitting exactly into those shoes to be his obligation. And I would be the first to concede him that point, and make no criticism of him for it.

Yet there has existed a void on the Supreme Court since Marshall’s retirement. Any student of the odyssey of civil rights in our nation has to know that the federal courts have been the bane and borne the burden of interpreting, sanctioning and implementing the laws enacted by the Congress or by the legislatures of the various states. Those decisions have stood the test and provided the ammunition to be the enforcers and protectors of the rights of the citizenry – no matter an individual’s race, gender, age or whatever.

So it has been frightening for the future that another void in the nominations and appointments to the federal trial courts and the courts of appeal — which are the feeder pipeline to the nation’s highest court for cases and future members— has begun to open yawning wide during the past twenty months. I hasten to point out that Marshall was a federal appeals court judge before he was named to the Supreme Court.

America’s conservative elements have shown an awareness of this for decades now as they fight to elect politicians who will nominate young, like-minded lawyers to serve in federal judiciary—and eventually the Supreme Court. I salute those persons because they understand the rules of the game, and don’t hesitate from played the hardest of hardball. They stressed that these were lifelong appointments and that getting able, young persons on the bench is essential to their cause. They are cognizant of the fact that those young conservative judges will be there when their appointing presidential administrations have ended. The right has done that since it tried to pack the federal judiciary on the eve of Thomas Jefferson’s elevation to the presidency. Their tactic isn’t new.

So why do those who believe in Marshall — a man who truly knew how to bring progress to America — and his legal values consistently refuse to learn from the lesson the right has spent centuries trying to teach us?

A September 7 article in my hometown newspaper, the Richmond Times Dispatch, reported “Obama getting fewer judges confirmed than Nixon.” How can that be?

The story went on to report, “The Obama administration got off to a slow start sending names to the Senate last year and has yet to try to fill the two vacancies on the high-profile federal appeals court of the District of Columbia. Obama has voiced only tepid public objection as more of his judicial nominees become stranded in Senate limbo. Senate Majority Leader Harry Reid of Nevada has been unwilling to set aside the considerable time needed to force votes under complex Senate rules.” Republicans are never so laissez faire when it comes to getting their people on the bench. The article further pointed out that the Senate has had 59 or 60 seats under Democratic control under Obama’s tenure, while Republican Nixon had a Senate chamber under the control of the opposition party. Again, how can our current situation be this way during such a favorable congressional era?

A September 8 article in another newspaper, The Washington Post, reported “Congress needs to stop stonewalling on federal court vacancies.” It went on to state that “partisans are blaming each other for the failure to fill vacancies on the federal bench.” The writer of the piece went on to acknowledge:

“[R]esponsibility starts with the president. Judicial nominations have not been high on Mr. Obama’s to-do list. This was especially true during his first year in office, when he sent up a mere 33 nominees for consideration … Presidents Clinton and George W. Bush sent the Senate 123 and 122 nominees, respectively, during their first 20 months in office. Mr. Obama has transmitted 85 nominations. The president’s focus on his policy agenda helps explain the lack of attention, but it is nevertheless perplexing because Mr. Obama is a former constitutional law professor who should appreciate the importance of the federal courts.”

Indeed, but my concern doesn’t end there. Where is the desire to bolster the careers of bright persons of color who may one day get the opportunity to carry forward Marshall’s legacy on the Supreme Court? It seems funny to say, but the National Football League seems to be further ahead of the administration on this count. The governing body of the NFL mandates that minorities be interviewed for each head-coaching vacancy because it will give people of color needed exposure to a process that historically they have been blocked from experiencing. During my time I have seen an absence of black coaches in the NFL ended largely because of the important step taken by instituting the Rooney rule.

Do I want something akin to the Rooney rule for federal judiciary? No. Would I like to more qualified minority candidates interviewed so that they can accrue the skills necessary to pass the final barrier to judicial appointment? Absolutely — and it’s incomprehensible why that is not happening during this administration. I don’t want a quota for black Supreme Court justices. But I do know if no one who looks and thinks like Marshall is ever considered for his old job no one who fits that description ever will get it.

This president has stressed the need for an urgency of now. He could handle this urgent need now, without taking much attention from the pressing economic needs he must also address. That is what the lawyers in the Department of Justice and the White House Counsel’s Office are paid to do.

It’s concerning how potential judges of color have been dismissed by this administration – especially for the Supreme Court. Immediately after Justice David Souter stepped down the White House zeroed in on Sotomayor to fill the seat, and that’s how the media reported it. Who was appointed? Sotomayor. If she’s the one he always wanted, and she’s the one he ultimately chose, it’s obvious African Americans were not seriously interviewed in proportion to their qualified numbers.

Replace the word “Sotomayor” in the above sentence with “Kagan” and we relived that same process and result after Justice John Paul Stevens resigned.

Both times the administration has gone through the steps to choose a Supreme Court justice the perception is that it ignored black candidates — strengthening the notion that none were worthy of being considered.

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