In Honor of Bloody Sunday We Need Voting Rights Lawyers On The Federal Bench
by Leslie Proll
Today marks the 56th anniversary of the Selma to Montgomery voting rights march, known as Bloody Sunday. It’s the first commemoration since the passing of Georgia Congressman John Lewis, who risked his life to pursue the right to vote. His presence will be deeply missed. It was his heroism, and that of countless others, that prompted passage of one of our most consequential civil rights laws — the Voting Rights Act of 1965.
As we celebrate this iconic march, it’s important to underscore the solemnity of the day, especially given the recent frontal assault on our democracy. On Jan. 6, former president Donald Trump’s supporters tried to overturn the election results by claiming voter fraud and then by violently storming the U.S. Capitol. In the wake of the deadly insurrection, 253 bills to restrict the vote have been introduced in 43 states, representing a new and unprecedented attack on voting rights.
The Selma anniversary reminds us of the tremendous importance of the federal courts in protecting our democracy. It was the federal courts that ruled that marchers could safely cross the Edmund Pettus Bridge in Selma, Alabama. It was the federal courts that enforced the Voting Rights Act to enfranchise millions of people of color over the ensuing decades.
But federal courts can also do significant harm to voting rights. Eight years ago, the U.S. Supreme Court gutted the heart of the Voting Rights Act in Shelby County v. Holder by lifting the requirement for jurisdictions with a history of voter discrimination to preclear voting changes. Last week the Supreme Court heard a case that could destroy one of the remaining key provisions of the Voting Rights Act.
Given the vital role of the judiciary in ensuring that our democracy is open and accessible to all citizens, it is imperative that federal judges have a deep understanding of the history and modern-day struggle facing communities of color in achieving full political participation.
As President Biden begins to fill dozens of judicial vacancies, he should appoint lawyers who have dedicated their careers to protecting the right to vote. Lawyers who have represented the disenfranchised know how precious our democracy is. They understand that the right to vote is fundamental and essential to protecting all other rights. They would bring that important perspective to the job of ensuring equal justice under the law for all Americans.
The case for nominating voting rights lawyers to the federal bench has never been stronger. During his presidency, Donald Trump dramatically changed the composition of our courts by appointing 234 judges. Dozens were extreme ideologues with long records of hostility to civil rights.
Many of Trump’s judicial nominees were strong proponents of voter suppression. As the NAACP noted in its report Weaponizing the Bench to Suppress the Vote, these nominees sought to undermine the Voting Rights Act, defended voter ID and voter purging laws, and supported a citizenship question on the U.S. census. Now confirmed, they are causing harm to voting rights. One Trump appointee argued that voters of color could not sue states under the Voting Rights Act. A recent study found Trump’s judges largely supported voting restrictions imposed during the 2020 presidential campaign.
It’s not only Trump’s appointees we should be concerned about. Our federal courts are out of balance when it comes to the backgrounds of the judges serving on them. Both Republican and Democratic administrations have nominated far too many corporate lawyers and prosecutors to judgeships. The absence of judges who have represented marginalized groups impairs judicial decision-making and reduces confidence in the courts.
Democrats are finally recognizing this longstanding imbalance. The White House has asked senators to recommend candidates whose legal practices are underrepresented on the bench. Civil rights lawyers are encouraged to apply, which hasn’t happened since President Carter appointed the last real slate of progressive lawyers to the courts.
Voting rights lawyers should answer this call, and the White House should nominate them. Judges with a deep background in protecting our democracy would contribute to the expertise of the federal bench generally and help offset a judiciary skewed toward big business, partisan interests, and governmental power.
Seventy-seven years ago, Thurgood Marshall won what he considered his most important case, Smith v. Allwright. The U.S. Supreme Court held that Texas’s whites-only primary violated the Constitution; the ruling opened the door to Black civic participation in the modern era. Thurgood Marshall would later serve on the U.S. Court of Appeals for the Second Circuit and the U.S. Supreme Court. Today, we need judicial candidates who can list “protecting democracy” on their resumes. Our federal courts will be stronger for their presence.
Leslie Proll is the senior adviser on judicial nominations for the NAACP.