Race and judicial appointments
The N.C. NAACP today "urges," "implores" and "demands" that Sens. Kay Hagan and Richard Burr recommend the appointment of a black candidate to fill a judicial vacancy in U.S. District Court for the Eastern District of North Carolina.
"It is important that the judiciary reflects the racial diversity of North Carolina. Our examination of the presence of African Americans who serve as Judges on the three District Courts in this State shows an abysmal failure by our political leadership to recognize and appoint qualified African Americans to serve as District Court Judges," a letter signed by the Rev. William J. Barber II, state president of the NAACP, says.
After noting that two black judges have served in the Middle District (based in Greensboro and Winston-Salem), Barber adds:
"Not one African American has ever served as a Judge in either the Eastern or Western Districts. In particular, it is an obscenity that there has never been an African American Federal Judge in the Eastern District where roughly half of North Carolina's African American population resides, North Carolinians who have never been represented on their federal District Court. This exclusion is unacceptable and an embarrassment to this State and its African American community.
"As you know, President George Bush nominated nine individuals to North Carolina District Courts and each one of those nominees was white and only one was a woman. Thus far, based upon your recommendations, President Barack Obama has appointed two Whites to seats on North Carolina's federal bench. As North Carolina's elected Senators who are responsible for making nominations to the President, we demand you represent all your constituents and change the racial disparities which presently exist within our federal court system. We implore you to support an African American for the third appointment and ensure equity in future appointments."
OK, first just a bit of perspective. While Barber is correct about Bush and Obama's appointments, it is important to mention that both presidents nominated black North Carolina judges to a higher court — the 4th Circuit U.S. Court of Appeals, which covers North Carolina, South Carolina, Virginia, West Virginia and Maryland. Bush's nominee was Allyson K. Duncan; Obama's was James A. Wynn Jr. Obama also nominated Albert Diaz, who is Hispanic. I don't know if that counts on the NAACP's scorecard; I assume not because the NAACP did not urge the appointment of a Hispanic judge to the open seat.
Nevertheless, the District Court is the level of federal judiciary closest to the people. It hears cases here in North Carolina, dealing with a wide range of federal criminal and civil matters. Prosecutions of corrupt North Carolina politicians have been brought to federal district court. The John Edwards case is pending in federal district court here in the Middle District.
It is an undeniable fact that both women and minorities have been underrepresented on the federal district court bench in North Carolina. I would hope, over time, to see that imbalance rectified.
However, the NAACP demand raises a couple of concerns.
First, of course, is its attempt to exert political pressure for a quota appointment. Who might be the most qualified candidate is not the primary issue. An individual who is white, Hispanic, Asian or Native American will not do. The person nominated for this specific seat must be black to satisfy the NAACP.
That not only attempts to limit the options for Hagan and Burr when they recommend a candidate to the president (realistically only Hagan, because only she has any influence with the White House), but it puts Obama in an awkward position. Demanding that a black president to nominate a black judge strictly to meet a racial mandate is unfair.
If he complies, however, the judge nominated will be regarded as having won the nomination because of his or her race. Certainly, the individual will be qualified for the job. Obama's previous appointments show he takes this responsibility seriously. Not only that, but Hagan gets credit for having convened a panel of respected lawyers and former judges to recommend qualified candidates to her. I assume she'll rely on the same counsel in this case. Nevertheless, a black judge would carry the suspicion, true or not, that he or she was strictly an affirmative action hire.
One person considered for Obama's Middle District appointment, which ultimately went to Catherine Eagles, was Anita Earls of the Southern Coalition for Social Justice. Her name could come up again, although I think Senate confirmation would be problematic. Unlike Eagles, who was an experienced judge in state courts with no perceivable political bent, Earls could be viewed as a liberal political activist (although she has served impartially on the State Board of Elections). More mainstream nominees could come from our state appellate courts — although a federal district appointment would be a comedown for someone like N.C. Supreme Court Justice Patricia Timmons-Goodson. Court of Appeals Judge Wanda Bryant might be a credible possibility.
A broader issue is the notion that judges should be "representative" of the population. That's a topic for long and interesting discussion. Technically, a judge is not a representative. Ideally, a judge upholds the constitution and the laws of the United States and regards all persons who come before his or her bench without distinction for race, creed, gender, condition, etc.
Yet we must admit the historic legacy: Equal justice for minorities was a false promise for much of our nation's history — and fairly recent history at that. So it is easy to understand why the NAACP thinks it is so important to see more black men and women on the bench at all levels of state and federal courts.
As with so many issues that touch on race, this is one that requires, well, judicious consideration. Let's see where Hagan and Obama go with it.
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