The first flurry of Joe Biden appointments to the federal courts has blown in, and those benches — largely reserved for white males in the 220 plus Trump appointments, are gaining a bit of color and more women. Some other federal judge stereotypes appear wobbly as well.
There is not only more chance for criminal law expertise, but for skills developed on both sides of the criminal docket. On the civil side, the baby judges will not come exclusively from what we call in the trade “rug lawyers” — poking fun at the deep pile carpet in their high rise tower offices. Some of us even expect to see appointees to the U.S. Courts of Appeals and later the SCOTUS who got their legal educations somewhere other than Harvard (21 alums and 17 grads in the history of the SCOTUS) or Yale (11 alums and 9 grads). Only one other law school has produced more than three Supreme Court justices — Columbia, with seven alums and four grads. (Fair disclosure: I share with the POTUS a non-Ivy law degree — -mine from Texas and his from Syracuse.)
Biden’s many years chairing the Senate Judiciary Committee give him a head start in picking judges. In his first 11 appointees, he has proposed three African-American women for courts of appeals, a job that is the most common preparation for the SCOTUS. He has promised to put an African-American woman on the SCOTUS.
We will never see Biden bragging about “Biden judges” the way that previous fellow bragged about “Trump judges.” Most lawyers and all judges understand that judicial appointments are not jobs from which you are expected to do anybody’s political bidding. When Trump began to stack the federal courts with young Federalist Society members, I did not share the degree of alarm in the political world generally.
I was certainly concerned that Trump was nominating men (almost always men) with very light qualifications, but I had confidence in the industrial-strength socialization process that hammers most judges into fidelity to the law. If, starting as a baby judge, you do not adopt an understanding of your duty to the law, you will find yourself isolated in a profession that by its nature isolates those who practice it.
I am aware of Mr. Trump’s reputation as an intellectual hermit who does not work or play with abstract ideas, a Chief Executive who lacks a grounding in history and does not read his briefing papers. Let that be true, I did not think he could put forward enough nominees who could meet the basic qualifications for the Bench without having some grounding in the world of ideas. Normally, a judge was graduated from a decent undergraduate school, earned at least one graduate degree, passed the Bar Exam, and then spent some time practicing law.
I’ve had many spirited disagreements with other judges, and here in Texas some of us have to sit where there are more cows than people, but the judge who just does not care to engage is a rare bird. Mr. Trump made it plain he expected continued political services from his judicial appointees, but it appears to most observers he did not get what he expected.
When the composition of the judiciary is criticized with regard to ethnicity or gender, economic class or education level, the questions raised by lay critics and by academic researchers are similar: Is there such a thing as African-American justice or Hispanic-American justice, female or male justice? Is Mr. Trump’s demand for Republican justice tailored to his immediate needs doomed?
Before they apply the law, judges must sort through facts presented in ways always contradictory and sometimes messy. Judges bring their life experiences to the fact-finding process. As Justice Benjamin Cardozo put it:
We may try to see things as objectively as we please. Nonetheless, we can never see them with any eyes except our own.
If the eyes seeing a particular tangle of factual assertions are all of the same ethnicity, gender and class — and this happens all of the time — is there not some probability that facts — the raw stuff of a legal decision — are being viewed through a lens not wholly free of distortion?
If there is distortion, would it not exist in every case where there is not cultural identity between the judge and the witnesses? Yes and no. Policy-makers must concern themselves with an aggregation of particular distortions in the fact-finding process adding up to systemic distortion.
Policy-makers not named Trump do not concern themselves with particular cases beyond observing that the greater the cultural gap between the witness and the judge, the greater the need for the judge to make heroic efforts of attention and objectivity.
Most educated people who follow the news understand in contemporary times the feelings a black citizen may experience trying to hail a cab or being shadowed by a security guard when shopping. There is a sense in which these issues are small enough to represent progress.
I offer the case of U.S. v. Shipp as an example of how it becomes progress to experience racial discrimination in hailing a cab or shopping. How close would you have to be to this chronology to carry the experience with you for how long?
January 23, 1906 — “(A) rape was committed upon a white woman in or near Chattanooga, Hamilton County, Tennessee.”
January 25 — “Ed Johnson, a negro” arrested for the crime. A mob attacked the jail that night, but Johnson had been moved elsewhere.
January 26 — Ed Johnson indicted.
February 6 — Johnson’s trial began with three court-appointed lawyers.
February 9 — Johnson convicted and sentenced to death. Execution set for March 13.
February 10 — The Chattanooga Times published a statement by one of Johnson’s court-appointed lawyers explaining why no direct appeal would be taken:
We (the lawyers) discussed the recent mob uprising and the state of unrest in the community. It was the judgment of all present that the life of the defendant, even if the wrong man, could not be saved; that an appeal would so inflame the public that the jail would be attacked and perhaps other prisoners executed by violence.
In the opinion of all of us a case was presented where the defendant, now that he had been convicted by a jury, must die by the judgment of the law, or else, if his case were appealed, he would die by the act of the uprising of the people. After hearing this from his defenders, Johnson… said to us that he did not want to die by a mob; that he would do as we thought best. He said he would go over to the courthouse and tell the judge that he did not have anything more to say than that he was not the guilty man.
Johnson apparently “decided” not to appeal.
March 3 — Writ of habeas corpus filed in United States district court on behalf of Ed Johnson.
March 10 — Writ denied; ten days allowed to appeal.
March 1 — Governor changed execution date to March 20; Johnson taken back to Chattanooga jail.
March 16 — The Chattanooga Times reported that a “negro attorney had gone to Washington” to seek an appeal of the habeas corpus denial.
March 17 — Justice Harlan, sitting as Circuit Justice, allowed the appeal.
March 19 — The full Court accepted the appeal, staying Johnson’s execution. That same night, with no physical resistance from Sheriff J. F. Shipp, Ed Johnson was broken out of the Chattanooga jail and lynched.
The Attorney General filed an original information in the Supreme Court charging Sheriff Shipp and twenty-six others with contempt of the Court’s order staying execution. After three years of due process — Johnson having had less than three months — the Sheriff and five others were punished. This case, if we can turn our eyes from the fine distinction between illegal lynching and legal lynching (we could not now pick a jury between the time of Johnson’s alleged crime and the trial court’s judgment of death), contributes two points to our discussion.
First, the Supreme Court had a commissioner to take testimony in this case and report it without comment. The Court was the fact finder, but without any way to gauge the demeanor of the witnesses or to interpose questions; there was only a cold record.
On this record, the Court split five to three with one Justice not participating. The split is odd enough for those who believe facts to be cut and dried, but even more odd is the vehemence of the language in the two opinions. The majority opined that “(o)nly one conclusion can be drawn from facts “clearly established” while the dissent finds “not one particle of evidence or “no material evidence” or “not the slightest evidence.”
The matter of which there was “not the slightest evidence” was that the mob was armed. Of this, the majority opinion said “(n)umerous witnesses testify that no firearms were displayed by the mob except that one of their number was in the office of the jail with a Winchester rifle, and one pistol was exhibited to a reporter when the door was being broken open.” Later in the transcript, there was no evidence that firearms were displayed, but it appears they were used: “The first time Johnson was swung up, the rope broke or slipped and he fell. He was swung up a second time and shot. After some shots were fired, Johnson again fell, and while lying on the ground was again shot. It was about ten minutes after the mob had reached the … (scene of the lynching) until Johnson was killed.”
Neither opinion raised any dispute about the law, and the facts were presented cold; yet the Court divided sharply. Nothing explains these opinions except the life experiences of the eight Anglo-American males who participated.
The composition of the Shipp Court brings up a second point:
Could Justice Peckham — would Justice Peckham — write the dissenting opinion he wrote if he had to face a Justice Thurgood Marshall in the case conference? And how much more difficult would it have been for the entire system to work its minimalist view of due process upon Ed Johnson if the un-named “negro attorney” who attempted the Great Writ on Johnson’s behalf was seen as a potential judge? In short, Mr. Biden’s support for diversity in the federal judiciary is like Mr. Trump’s dismissal of diversity as “political correctness” in that both positions come with all the historical baggage of American race relations.
I am reminded of a motion to recuse an African-American federal judge filed by the KKK when it was being sued for arson of Vietnamese shrimp boats. The argument was that a black judge could not possibly give a fair trial to persons who were white underneath their sheets.
Virtually all litigation involving American Indian tribal governments takes place in federal courts, and there was a time early in the Clinton administration when there was not even one American Indian federal judge in the whole country. Not a one. I was complaining about that state of affairs to a non-lawyer, who suggested to me that there were no qualified Indians.
I responded that I felt qualified as a grad of a first-tier law school with over ten years on a state Bench and a graduate degree in judicial studies. But what would I do, he wanted to know, if I were a federal judge and got assigned a lawsuit between the federal government and the Cherokee Nation, in which I hold citizenship? He was appalled when I said I would hear it. Apparently, my U.S. citizenship does not count for recusal purposes but my Cherokee citizenship does. Sigh.
The phrase “African-American justice” is tautological nonsense. Is it a view of justice held by an African-American? Then, how can two African-American lawyers argue about it? If judges, like juries, were to represent a fair cross-section of the community, no particular case can be shown to probably reach a different result.
Mr. Trump’s expectations notwithstanding, most sane people would agree that our enterprise is not about guaranteeing particular results. We can only guarantee to the public that the process itself is fair. If the process is perceived as generally fair and just, public opinion will tolerate “mistakes” by the justice system. Minority judges contribute to this perception by their mere presence, and they contribute to the substance of justice with the perspectives they bring to both fact-finding and statutory construction.
Without this contribution, without significant numbers of minority voices in the judiciary, it is ludicrous to ask whether there is black or brown justice. We should ask if there is white justice.
Previously Published on Medium