Trump and the Courts: Bias On The Bench

With the retirement of Justice Anthony Kennedy and the nomination of Brett Kavanaugh to succeed him, all eyes have turned to the battle over the Supreme Court. The stakes could not be higher. While Justice Kennedy was a solid conservative on many issues, his vote was always in play. For example, he voted to allow the consideration of race in college admissions to promote diversity, to uphold the disparate impact method for proving discrimination in housing, and to secure equal treatment for the LGBTQ community. Kavanaugh’s background and his 12-year record on the D.C. Circuit shows that he will be a dangerous ideologue who will lurch the Supreme Court to the far right and upend long-standing civil rights protections across the board. But saving the Supreme Court is not the only battle we have to fight. The appellate and district courts still deserve our attention and protection. These “lower courts” play a vital role in our daily lives, deciding issues regarding workplace protections, health care, educational opportunity, economic justice, voting rights, immigration and the criminal justice system. These courts often have the final say since so few cases are considered by the Supreme Court. And just like Supreme Court justices, judges on these courts are appointed for life. In addition to the pending Supreme Court nomination, President Donald Trump continues to nominate persons to the appellate and district courts. And Senate Majority Leader Mitch McConnell continues to confirm them. Two more appellate judges were confirmed in July, bringing the total of Trump’s appellate appointments to 24. The confirmation of lower court judges should come to a standstill while the Senate considers the enormously significant Supreme Court nomination, but until it does, we need to stay alert and engaged. We need to be able to walk and chew gum at the same time. As with his Supreme Court appointments, Trump’s lower court appointments will cause lasting damage to the nation. The nominees have atrocious records that should disqualify them for service on the federal bench. But the Senate, despite its constitutional obligation to advise and consent, has failed to give these nominees the intense scrutiny they deserve. Some lack basic litigation experience and most possess telltale signs of prejudice and bias. Hostility to civil rights is now essentially a prerequisite for a Trump judgeship. Nevertheless, the Senate is confirming each and every nominee, with unprecedented speed. Individually and collectively, these appointments threaten the public’s confidence in the courts, which is essential to the integrity and functioning of the judiciary. The justice system works only if the people it serves believe in its independence and trust in it. Litigants must expect that justice will be dispensed fairly and impartially. They must know that the decisions they are ordered to follow are based on law and facts, not politics or ideology. When nominees demonstrate bias against certain communities and disagree with bedrock legal principles, there will be a loss of faith in the courts as an institution. There are glaring examples of nominees undermining trust in our justice system. Several refused to acknowledge that the ruling in Brown v. Board of Education is correct. Brown is the seminal decision on equality, one of our nation’s fundamental principles. This is the rule of law. Yet these nominees refused to offer even a summary endorsement of Brown. Several would sit on courts within the 5th Circuit, whose former judges were called “unlikely heroes” because they enforced the Brown ruling throughout the South in the face of massive resistance and grave personal danger.

These jurisdictions still have numerous desegregation cases on their dockets. How can the parties, and the schoolchildren governed by these cases, think they will receive a fair ruling by a judge who placed Brown in doubt? How can a plaintiff in any civil rights case believe in the impartiality of a judge who has questioned Brown? There are more examples. Michael Brennan, recently confirmed to the 7th Circuit, refused to answer Sen. Cory Booker’s question about whether “implicit racial bias exists in our criminal justice system.” Brennan is a former prosecutor and state court judge in Milwaukee, the site of national protests regarding police violence against the African American community. How could he not answer? Fifth Circuit appointee Andrew Oldham refused to answer Sen. Kamala Harris’ question about whether voting discrimination still exists. Oldham is from Texas, where he asked the Supreme Court to gut the Voting Rights Act and defended Texas’ photo ID law before a court found it intentionally discriminated against voters of color. The 5th Circuit’s docket today includes a number of voting rights cases. What are these plaintiffs to think when they draw Judge Oldham on their panel? The nominees’ backgrounds cast serious doubt on their ability to be impartial. A case in point is Thomas Farr, nominated to the Eastern District of North Carolina. As a judge, Farr would preside over many of North Carolina’s African American residents, in an area known as the “Black Belt.” But Farr has direct ties to White supremacists and was personally engaged in intimidating Black voters during one of Jesse Helms’ Senate campaigns. He crafted and defended North Carolina’s voter suppression law, which a court struck down as targeting African Americans with “almost surgical precision.” Civil rights cases are a mainstay of North Carolina’s federal docket. Even before these plaintiffs walk through the door of Judge Farr’s courtroom, they could easily believe their case was doomed. As any sitting judge will tell you, the perception of fairness is paramount; it is something judges take great care to protect. The appalling records of Trump’s nominees are not the only threat to public confidence in the courts. Trump’s judicial appointments are the least diverse in modern history. Diverse representation on the bench — in gender, race, ethnicity, sexual orientation or professional background — is immensely important. Judges bring their life experiences to the job. Diversity in background and perspective improves the judicial decision-making process. Diversity also inspires confidence in the judiciary. Courts should reflect the communities they serve in order to promote respect and trust in the justice system generally. Judicial diversity has never been a particularly partisan issue. It is just that Democratic presidents over the years have often demonstrated a stronger commitment. President Harry S. Truman appointed the first African American to the federal bench, William Henry Hastie. President Lyndon B. Johnson appointed Thurgood Marshall to the Supreme Court and Constance Baker Motley, the first African American female judge, to a federal court. President Jimmy Carter appointed nine African American appellate judges in one term — a record that still stands. President Bill Clinton famously desegregated the 4th Circuit by recess appointing Roger Gregory to the last segregated circuit court in the country. President Barack Obama prioritized judicial diversity; his nominees were the most diverse in history, including the first woman of color nominated to the Supreme Court, Sonia Sotomayor. More than one-third of his appointments were people of color. Republican presidents have made their mark, too, at least until now. President Richard M. Nixon appointed the first Asian-American federal judge and six African Americans, including former civil rights lawyer Robert Carter. President Ronald Reagan appointed Sandra Day O’Connor, the first woman to serve on the Supreme Court. President George W. Bush appointed nearly as many Hispanic district judges as Obama did. And, when he announced his first 11 appellate nominations, they were bookended by two African Americans. Despite gains over the years, diversifying the federal courts has virtually come to a stop under Trump. Of more than 130 nominees, only three are African American and none have been confirmed. Trump’s first Hispanic judge was finally confirmed in June. But the lack of diversity among Trump’s appointments is only half the story. People should understand the staggering consequences of this wholesale retreat in diversity on federal courts across the country. For starters, the nation once again has an all-White appellate court. All-White circuit courts were supposed to be in our past when the 4th Circuit was finally integrated in 2000. But since Trump took office, the 7th Circuit (which covers Illinois, Wisconsin and Indiana) lost its only judge of color when Judge Ann Claire Williams retired in January. If that court’s diversity was not increased, her departure would inevitably return it to an all-White bench, and that is precisely what happened. President Obama tried to prevent an all-White bench by appointing an African American in 2016, but her nomination was blocked by her home-state senator. Trump has had four opportunities to re-integrate this court, but all of his appointees are White. The 5th Circuit just suffered a devastating loss in diversity. This circuit encompasses Louisiana, Mississippi and Texas, and has the largest percentage of residents of color of any circuit. Its docket includes hugely significant civil rights cases involving voting rights, education, fair housing, immigration and criminal justice. The circuit’s first Hispanic judge was appointed in 1979, and two of the four Hispanic judges to serve on the court were appointed by Republican presidents. The circuit’s only active Hispanic judge recently stepped down to accept an ambassadorship to Argentina. The idea that this 17-member appellate court would not include a single Hispanic is unfathomable, but here we are. Of Trump’s five appointments to this court, none is Hispanic. Not only are specific courts losing critical diversity, but entire categories of judges are thinning in ranks, such as the representation of African American women on appellate courts. At the beginning of Trump’s term, there were seven Black women serving on these courts. (There would be two more had the GOP confirmed Obama’s nominees.) Judges Ann Claire Williams and Janice Rogers Brown have since retired and 4th Circuit Judge Allyson Duncan just announced that she will take senior status. Of the four Black women remaining, three are eligible for retirement. If these women decide to step down — and we certainly hope they do not — we would be back to where we were in 1979, when only one Black woman sat on an appellate court. Despite these precarious circumstances, Trump has yet to appoint an African American woman to a federal court at any level. The federal district courts are gravely affected by the retreat in diversity. Confidence in these courts is particularly threatened since litigants often see and interact with district court judges in hearings and trials. Courts that once had diverse representation have lost it, with no replacements in sight. The Middle District of Alabama, where Judge Myron Thompson has sat since 1980 and is now on senior status, now has no active Black judges. The United States District Court for the Eastern District of Virginia in Richmond, where Ronald Reagan appointed a Black judge in 1986, is once again all-White. It is not essential that one-for-one replacement occur since the concept of an “African-American seat” is limiting, but these are now courts with no diverse representation whatsoever. The nation should find this deeply troubling. Moreover, we have stalled in our long march toward diversifying the federal courts overall. In 2018, certain federal courts still have never had a judge of color. The Eastern District of North Carolina, where Thomas Farr is nominated, has never had a Black judge, although President Obama tried twice to integrate that court. Litigants in other Southern courthouses have never appeared before a judge of color, including the Southern District of Georgia, the Western District of Louisiana and the Western District of Virginia. This is true for other parts of the country as well, where diverse populations are not reflected on the local federal bench. A fair and independent judiciary is central to our democracy. If ever there was a time to protect the confidence and integrity of our courts, it is now. We must fight Brett Kavanaugh’s nomination to the Supreme Court with everything we’ve got. We must also resist Trump’s appointment of equally dangerous ideologues to the lower courts who will reverse hard-won progress in civil rights jurisprudence and diversity on the bench. We must engage our senators as never before to exercise their power to block each and every nominee who threatens the independence of our courts, at every level. We must insist upon diverse nominees who will be fair, impartial and committed to equal justice under law. Our civil rights and those of our children and grandchildren depend upon it. — Leslie Proll is a civil rights lawyer and  senior adviser on judicial nominations for the NAACP.

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