The Courtesy of Becoming a Federal Judge
By Steve Suitts
Vol. 1, No. 2, 1978, pp. 6, 7, 23
As a moderate segregationist governor of Mississippi, James P. Coleman once advised his supporters resisting integration that “any legislature can pass an act faster than the Supreme Court can erase it.” As time showed, the strategy was partially effective since racial integration began to seep into Mississippi only after being confronted with civil rights legislation, an angry president, and federal court decisions. The governor’s own course, however, may have had a more lasting effect. He retired from office, was appointed to a federal judgeship, and now sits on the Fifth Circuit Court of Appeals.
Judge Coleman and his brethren on the Fifth Circuit will soon be joined by several others when the president announces the appointment of the 60 district and circuit judges who will be added to the federal bench in the South. Because of recent legislation, more than 150 new federal judges will be appointed throughout the nation. Never before have so many federal judges been appointed at one time.
Although no one, including the president, knows exactly who will fill all these positions, there is clearly a moral obligation for him to appoint a large number of qualified Blacks and women. As a recent report of the Southern Regional Council revealed, the federal court system in the South has only one Black federal judge out of more than 130. Only one Black is a U.S. attorney and only three are U.S. marshals in Southern states. No Black is a full-time magistrate or chief clerk. Overall, no more than six percent of the entire personnel of the federal courts in the South is Black – an increase of only four percentage points since 1965.
While women are represented in large numbers, mostly in secretarial and clerical positions, they hold few positions of responsibility. Only one woman is a federal judge in the South. There is no female U.S. attorney or U.S. marshal and in all professional positions in the Southern district courts, women hold only 9 percent of them.
These facts alone ought to insure that a large number of Blacks and women will be appointed; however, the same moral imperatives and striking facts existed in 1965, when not a year after signing the Civil Rights Act, President Lyndon Johnson submitted the name of James P. Coleman to be a federal judge.
Judge Coleman’s appointment angered almost every civil rights activist, many of whom testified against his appointment before the U.S. Senate committee. In opposing Coleman’s nomination, Martin Luther King, Jr. expressed his own puzzlement about how the president could nominate a man who was “the architect of the Mississippi plan to circumvent the orders of the very court to which he now seeks appointment.” Despite their anger, most Southern civil rights lawyers were not surprised. They knew of that peculiar process now, in gentlemanly terms, as “senatorial courtesy.”
Despite the Constitutional provision that the president shall appoint and the Senate shall confirm nominees to the federal bench, the process usually works with the roles reversed. One or two senators from a state select the nominee, the president confirms him, and the Senate seals the bargain. Thus, in reality, it was the powerful senators from Mississippi – not Lyndon Johnson – who made Coleman a federal judge.
The process of judicial selection is pure patronage and works like this: a senator from the state where the nominee will serve selects the person and informs the president. After a background check by the F.B.I. and review by the Bar Association’s committee, the president usually submits the name of the nominee to the Senate. The Senate Judiciary Committee, in turn, returns the name to the senator asking permission, in effect, to conduct hearings. If the nominee is the same person the senator originally nominated, the committee holds hearings and votes on whether to confirm. If the senator’s selection was not forwarded by the president, he usually has an opportunity to kill the nomination.
While the process varies from time to time, the motivating element in the selection is always political favoritism and was recently described by Attorney General Bell, who became a federal judge of the Fifth Circuit in the Kennedy administration. “Becoming a federal judge wasn’t very, difficult,” Bell says. “I managed John F. Kennedy’s presidential campaign in Georgia. Two of my oldest friends were the two senators from Georgia. And I was campaign manager and special, unpaid counsel for the governor.”
Under this system, it is obviously easier to explain an appointment to the federal bench by looking at the local politics and the state’s two U. S. senators than by reading the president’s announcement of the nomination. Certainly, it would have been hard otherwise to figure out how President Kennedy appointed Harold Cox, a vocal segregationist who after taking office once referred to Blacks as “chimpanzees,” and how President Johnson could have come up with Coleman as his first choice.
As the system has always operated, the further a judgeship is removed
from one particular state, the less senatorial courtesy is observed. The appointment of district courts judges whose jurisdiction is confined to one state have always been viewed as the exclusive property of the U. S. senators from that state. While the same process applies to judgeships of the circuit courts (since retiring judges are usually replaced by someone from the same state), a president has greater opportunity to exercise his own judgment on these. Positions on the Supreme Court have never been subject to the usual senatorial courtesy although many Supreme Court justices sat on lower courts and were selected to those positions by the usual process.
Like others, this system of patronage works efficiently-just not fairly. For Southern Blacks and women, the process is as exclusionary as some of the most disingenuous Jim Crow laws.
Most Southern Black lawyers have been involved since their days in law school with supporting legal battles against local state and White politicians. They’ve opposed in court most of the important legislation and political chicanery which Southern Whites attempted to maintain for their own survival. Obviously, these lawyers are seldom the individuals who are first in line for patronage from the South’s delegation to the U. S. Senate.
Many women lawyers, also, have fought hard against local White politicians in the South, and just as often others simply are not counted as vital for any political support. In both, few women lawyers have claim to enough political patronage.
Unfortunately, the system has not opened up even when the old patricians of Southern life have been replaced with more progressive Southerners. Often, the usual course of least resistance for these newer senators has been to avoid local opposition to the appointment of a Black or a woman. Usually concerned not to show themselves as “too liberal” these senators prefer less visible means of supporting Black and women constituents.
The only Black federal judge in the South, Robert Collins, who was appointed in July to a Louisiana district court, has the necessary training and experience to be a federal judge. He also had the real qualifications! He was very active and influential in successful campaigns for Louisiana’s statewide officeholders. Few of his Black colleagues in the bar across the South hold such a unique position.
The political power of Blacks simply isn’t strong enough to influence many appointments. In no Southern state has a Black been able to be elected to a major statewide office. While Black voters are significant in some statewide races, they don’t have the numbers or the political clout in any one state to demand that Black lawyers be well represented in that line of people waiting for their political dole. With emerging voting patterns where Blacks no longer vote solidly for only one White candidate in Southern statewide elections, chances of Black leaders competing successfully for their fair share of patronage will decline.
Two years ago another former governor from the South, Jimmy Carter, ran for president and pledged to rid the selection of federal judges of political patronage and to make appointments only on the basis of merit. While the president has not attempted to alter the process of selecting district judges, the heart of the patronage system, he has established for each appeals court a commission which gathers nominations and make recommendations. There are also other proposals presently before Congress which would break up the old system. Some already operate in such places as Florida where the state’s senators agreed voluntarily to alter senatorial courtesy. Although each plan differs, all have a “bi-partisan commission” which makes recommendations to the president and the senators.
It is not clear how far these new procedures move the selection away from patronage. For instance, there is little difference between the selection of a judge by a commission filled with the political cronies of a U. S. senator and the senator’s own selection. Also, there’s evidence that some of the commissions include a Black or woman in their several recommendations merely for appearance, knowing that someone else will always be selected. In any event, none of these commissions operating in the South has produced a Black or woman judge.
The standard set by these bi-partisan commissions may also have the same effect as the patronage system. For instance, some commissions have been requiring that a person have 15 years trial experience as a lawyer to be eligible for consideration. Although justified in the name of competence, the standard simply excludes an overwhelming number of Black and women lawyers in the South.
Fifteen years ago when Southern governors were fighting to keep Blacks out of state schools, including law schools, Blacks had to travel north to get a legal education and afterwards few could practice in Southern states since they were largely excluded from the bar associations. A requirement for 15 years’ trial experience as a lawyer is as exclusionary for Southern Blacks as the rule, once enforced in the South, that graduates from the state law school, where Blacks were prohibited, can automatically qualify to practice law.
Women in the South and elsewhere have faced similar obstacles. Because of social standards and law school admission practices, few women became lawyers before the 1960’s. Those who did graduate found it difficult as a lawyer to get actual trial experience. Judges, lawyers, and even clients often held the view that women could not competently handle a trial, and in large law firms women were seldom assigned to trial work. While she may be brilliant, she usually doesn’t have much trial experience.
By patronage or sham professionalism, the system of appointing judges
must not be allowed to exclude Blacks and women from the federal bench and to deny litigants the benefit of their additional experience, insight, and knowledge. The President and the Senate not only must abandon the system of patronage but also must recognize the unique opportunity in which the federal courts of the South and the nation can now be integrated. There probably will not be another chance in the next century to redress so well the many years of denied opportunities.
Yet, the old ways of patronage will not be withdrawn easily. In 1965, when civil rights had its greatest force in the U. S. Congress, judge Coleman’s appointment was opposed by no more than eight U. S. senators- a number which did not include many liberals such as Robert Kennedy. More recently, president Carter, has also been unwilling to confront the Senate’s patronage of appointments for district judges or to insure that the selection process includes Blacks and women.
Unless Southerners of good will devote time and energy to make the changes happen, Blacks and women in large numbers will continue to be denied this one “courtesy” and in future years we may all be searching desperately for even a compromised strategy which can do half as well as the one which suited Governor Coleman and his supporters years ago.