Most of the conversation about President Barack Obama's judicial nominations these days focuses on the unprecedented Republican push to block even those candidates with meticulous professional and personal qualifications. Although there are still regrettable incidents of "false equivalence" in the reporting of now-routine GOP filibusters of these nominees, there seems to be a growing consensus that the tactic in the Senate is as nihilistic as was the House's government shutdown: You can't have a rule of law without enough judges.
Another theme that has attracted some attention about judicial nominations, a counter-theme you could call it, posits that the White House initially did a poor job of quickly and efficiently nominating judicial candidates. There is no doubt that this was true—but that it was more true during the president's first term than it is today. The pace of these nominations has picked up—at last surpassing the pace of George W. Bush—and so, too have the number of candidates who are persons of color. Obama now is nominating women, and minorities, at a pace almost exactly double that of his immediate predecessor. It's quite laudable.
But this column isn't about either one of those things. It's about the dismal record this president has in successfully nominating black men and women to the federal courts in three states in the Deep South—Florida, Georgia and Alabama—which have significant minority populations that are grossly underrepresented on the federal benches there. Coming from a president who has nominated more women and candidates of color than any of his predecessors, this is both surprising and disappointing.
It is more so because President Obama has had success in nominating black candidates to the federal bench in Mississippi, as "Deep South" as America gets. Just last week, the Senate confirmed Debra Brown to a federal trial seat in the Northern District of Mississippi. She is the first black female judge in the state's history and her nomination was supported by both of Mississippi's Republican senators, Thad Cochran and Roger Wicker. In 2011, another black Mississippian, James E. Graves Jr., was nominated by President Obama and confirmed to the 5th U.S. Circuit Court of Appeals.
Despite these victories for diversity, the Congressional Black Caucus tells us that black judicial nominees for federal spots today are far more likely to face Senate opposition than their white counterparts. The case of Senator Marco Rubio's deplorable turnaround on the nomination of William Thomas in Florida—the senator first supported then withdrew his support—is only one live example. Senator Richard Burr, the Republican from North Carolina, also is impetuously stalling the nomination of a black female candidate for a federal spot there.
What accounts for this? Why has so much relative progress been made in Mississippi while so little progress has been made in those other Southern states? Why have Republican senators agreed to confirm some qualified black nominees for federal appeals court positions but blocked other qualified black candidates? Surely, the makeup of the Senate delegations from those states has something to do with it. Surely, the president's nominees do as well. But there is an arbitrary nature to the Senate's response to these nominations that undercuts the premise of its "advice and consent" role. And there is a lack of steel behind the White House's push for judicial diversity even as the nation's benches have become significantly more diverse.
11th U.S. Circuit Court of Appeals
The 11th U.S. Circuit Court of Appeals represents Alabama, Florida, and Georgia. Its territory comprises the highest percentage of blacks—approximately 25 percent—of any federal judicial circuit in the country. Today, there are eight judges on "active" status on the bench there and eight more on "senior" status. Of these 16 jurists, only one is black—Judge Charles Wilson, who was appointed by President Bill Clinton in 1999. Judge Wilson, in turn, replaced Judge Joseph Hatchett, the first black judge ever to serve in the 11th Circuit since its creation in 1981. There has never been a black female judge on the 11th Circuit.
There have been six vacancies on the 11th Circuit since President Obama took office in January 2009. He has not nominated a single black man or woman to fill them. He has nominated instead one Latino man and four white women. The Senate has confirmed two of these nominees—Adalberto Jordan and Beverly Martin, both of whom were Clinton district court appointees. As set forth below, there is currently a vacancy, for an "Alabama" spot on the 11th Circuit, that is so new the White House has not yet named a nominee for it.
By contrast, four of the 15 judges currently on the 4th U.S. Circuit Court of Appeals are black (two of whom were appointed to their post by President Obama, the other two by President George W. Bush). The territory of the 4th Circuit comprises a slightly smaller percentage of blacks—23 percent—than does the 11th Circuit. Even the 5th U.S. Circuit Court of Appeals, still by far the most conservative in the nation, has two black federal appeals judges—one appointed by President Obama, the other by Bill Clinton.
The black population of Alabama in 1970, the first census year following the Voting Rights Act of 1965, was 26.2 percent. Today, according to U.S. Census Bureau figures, it is 26.5 percent. Yet there has never been a black woman on any federal court in Alabama. There have been only three black federal judges in the state's history—one of whom, Myron Thompson, now sits in senior status. Two of Alabama's 18 district court seats are now vacant—both of them have been empty since this past August.
There is only one Democratic member of Alabama's Congressional delegation— Representative Terri Sewell, a graduate of Harvard Law School—representing Birmingham. She's coordinating applicants for those positions (and would herself be a sensible nominee). But no matter whom her committee ultimately recommends, and no matter whom the president nominates, they will have to run the gauntlet of Alabama's two GOP senators, Richard Shelby and Jeff Sessions, both of whom have filibustered Obama's judicial nominees after denouncing such filibusters during the Bush Administration.
In 2009, President Obama nominated Abdul Kallon, a black man, to a federal district spot in Alabama. Kallon was quickly confirmed on a voice vote in the Senate and would make an excellent appellate judge. The president has not had an opportunity to nominate a black candidate from Alabama to the 11th Circuit. But he'll now have his chance. Two weeks ago, 11th Circuit Judge Joel Dubina, an appointee of George H.W. Bush, announced that he was taking senior status—another opportunity to recast the racial makeup of the federal appeals court.