Black federal judges are becom ing an endangered species

A. Leon Higgin

July 30, 1992|By A. Leon Higgin

Suppose someone wanted to steal back past achievements, rein in present gains and cut off future expectations among African Americans about participation in the judicial process.

That person would have found it difficult to devise a better plan than nominating Clarence Thomas to the Supreme Court while decreasing the number of African-American judges on the federal bench.

The confirmation of Justice Thomas forced the nation to pay attention to many issues, from the Senate's role in confirming Supreme Court Justices to sexual harassment of women in the (( workplace. But the Thomas confirmation proceedings diverted our attention from one vital issue: Thanks to Presidents Ronald ,, Reagan and George Bush, African-American judges on the U.S. courts of appeals have been turned into an endangered species and are now on the edge of extinction.

For more than 99 percent of federal litigants, the 13 courts of appeals are effectively the courts of last resort.

Last term the Supreme Court heard slightly more than 100 cases. In the same period the courts of appeals decided 41,000 cases; in addition, they had 32,000 cases pending on their dockets at the end of the year.

For 145 years the federal courts in the continental United States -- the Supreme Court, courts of appeals and district courts -- were entirely made up of white males.

The first woman, Florence Allen, was appointed by Franklin D. Roosevelt, in 1934, and the first African American, William H. Hastie, in 1949, by Harry S Truman.

During his eight years in office Dwight D. Eisenhower, however, did not appoint a single black to any federal court in the continental United States.

As for the courts of appeals, John F. Kennedy appointed one black, Thurgood Marshall, and Lyndon B. Johnson appointed two, Spottswood W. Robinson 3rd and Wade H. McCree Jr.

Neither Richard Nixon nor Gerald R. Ford appointed any African Americans to the courts of appeals.

Presidents Nixon and Ford did appoint a total of nine African Americans to the district courts. Mr. Reagan appointed six and ++ Mr. Bush has appointed nine.

By contrast, Jimmy Carter appointed 28 to these same courts. He appointed more blacks in four years than the Nixon, Ford, Reagan and Bush administrations managed in nearly 20 years.

Mr. Carter also took significant steps in his appointments to the courts of appeals.

When he became president in 1977, there were only two black judges on the appeals courts. In four years in office he appointed nine, including the first African-American woman, Amalya Kearse. Their presence made the federal judiciary far stronger than it otherwise would have been.

Moreover, to the extent that the appointment of judges is a barometer of a president's feelings about placing historically excluded groups in positions of power, Mr. Carter showed that he had complete confidence in African Americans.

President Reagan apparently felt otherwise, and Mr. Bush apparently does, too. On taking office, they both asserted that they wanted a far more "conservative" federal court system. In that they have succeeded admirably.

But in the process they have turned the courts of appeals into what Judge Stephen Reinhardt of the Court of Appeals for the Ninth Circuit has called "a symbol of white power."

In eight years of office, out of a total of 83 appellate appointments, Ronald Reagan found only one black whom he deemed worthy of appointment, Lawrence W. Pierce.

George Bush's record is just as abysmal. Of his 32 appointments to the courts of appeals, he also has been able to locate only one African American he considered qualified to serve: Justice Thomas.

Since Justice Thomas moved from the court of appeals to the Supreme Court, no blacks appointed by President Bush remain on the courts of appeals.

As Judge Reinhardt has said: "In President Bush's view, Clarence Thomas is apparently all there is out there. Clarence Thomas is black America to our president."

By 1993 six of the 10 African Americans sitting on the courts of appeals will be eligible for retirement. As the African-American judges appointed by President Carter have retired, Mr. Reagan and Mr. Bush have replaced them largely with white judges in their 30s and early 40s.

Why is it important for the federal bench to be pluralistic? Pluralism, more often than not, creates a milieu in which the judiciary, the litigants -- indeed, our democratic system -- benefit from the experience of individuals whose backgrounds reflect the breadth of the American experience.

I do not want to be misunderstood. Pluralism does not mean that only a judge of the same race as a litigant will be able to adjudicate the case fairly.

Rather, by creating a pluralistic court we make sure judges will reflect a broad perspective.

For example, speaking of Marshall, Justice Sandra Day O'Connor said: "At oral arguments and conference meetings, in opinions and dissents, Justice Marshall imparted not only his legal acumen but also his life experiences, pushing and prodding us to respond not only to the persuasiveness of legal argument but also to the power of moral truth."

A. Leon Higginbotham Jr. is senior judge and former chief judge of the U.S. Court of Appeals for the Third Circuit. This article is adapted from a speech he delivered yesterday to the National Bar Association in St. Louis.

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