Alabama's Federal Court Deserves a Judge Committed to Equal Justice
This week, the Senate will vote on the nomination of Andrew Brasher to the U.S. District Court for the Middle District of Alabama. Brasher currently serves as Alabama’s solicitor general. Civil rights organizations are strongly opposed to his nomination for good reason. He should not be confirmed to any federal court, particularly to the Middle District of Alabama which holds an iconic place in civil rights history.
First and foremost, the nomination of Brasher, who is White, does not address the lack of racial diversity on the Middle District bench. Alabama’s other federal district courts have African-American judges: Judge Abdul Kallon sits in the Northern District and Judge Terry Moorer, Trump’s only African-American confirmed judge, sits in the Southern District.
The Middle District has no active African-American judges. Before Judge Myron Thompson took senior status, the court had African-American representation since 1980. It is unfathomable that a federal court in the Deep South would re-segregate without huge outcry. Judicial diversity has never been partisan. It improves decision-making and promotes public confidence in our justice system, especially in Alabama where 35 percent of the residents are persons of color.
Andrew Brasher should be disqualified from confirmation solely based on his refusal to acknowledge, during his Senate Judiciary Committee hearing, that Brown v. Board of Education was correctly decided. His (non)answer is completely unacceptable. Brown is bedrock constitutional doctrine. Its affirmation of equal protection is foundational to our justice system.
Nominated to an Alabama court, it is appalling that Brasher has repeatedly and aggressively opposed full political participation by communities of color. Alabama is the birthplace of voting rights. Its federal courts have played a seminal role in upholding voting rights protections. From ensuring that participants in the Selma to Montgomery March could cross the Edmund Pettus Bridge without threat of violence, to striking down Alabama’s poll tax, to requiring municipalities to elect local officeholders from single-member districts, the Middle District has been at the forefront of protecting the vote. The federal court in Montgomery is the last court that deserves an ardent foe of voting rights.
Yet Andrew Brasher argued to gut the Voting Rights Act in Shelby County v. Holder. The court’s ruling, which eliminated preclearance of voting changes, has been devastating. Dozens of states and municipalities have enacted newly restrictive voter measures. In his brief, Brasher acknowledged Alabama’s history of denying voting rights but completely ignored recent efforts by and within the state to suppress the vote, justifying continued protection against discrimination.
Brasher defended Alabama’s legislative redistricting which relied improperly on race. Black legislators challenged the plan under the Constitution and Voting Rights Act, claiming that packing African American voters into majority Black districts diluted their influence in other districts. Arguing before the U.S. Supreme Court, Brasher took the absurd position that Section 5 of the Voting Rights Act, which he helped eviscerate, required lawmakers to racially gerrymander the state, by maintaining the same number of majority-minority districts with similar percentages of minority voters. But the Supreme Court held that there was “strong, perhaps overwhelming, evidence that race did predominate as a factor.” On remand, conservative Judge William Pryor of the 11th Circuit U.S. Court of Appeals, ruled that 12 Alabama legislative districts were unconstitutional because the Legislature relied too heavily on race. Brasher later complained that the Supreme Court created “a low bar for plaintiffs to show racial predominance.”
When Alabama’s disenfranchisement law — impacting Black voting-age population at three times the rate of Whites — was challenged, Brasher sought to dismiss the case. He reached out to file a friend-of-the-court brief defending an Arizona law that required proof of citizenship when registering to vote.
Brasher oversaw efforts to exclude noncitizens from the 2020 census count altogether. The Trump administration has sought to add a citizenship question to the census, resulting in three federal court rulings that the question was unconstitutional. But Brasher’s office went further, filing a lawsuit to prevent the Census Bureau from even counting noncitizens.
Federal judges must be fair, impartial and have a record of commitment to equal justice. Brasher lacks any such record. Civil rights litigants have a right to expect they will be treated fairly. How can Alabamians have such faith in view of Brasher’s vehement opposition to voting rights, which are preservative of all other rights? The Middle District of Alabama can do better, much better, when it comes to lifetime appointments to safeguard justice.
— Leslie Proll advises the NAACP on judicial nominations. She is a member of the Alabama State Bar, and previously practiced civil rights law in Birmingham.
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