Federal Courts and Nominations

OP-ED: No African Americans in Major Posts Under Sessions? No Surprise.

“I think diversity is a matter that has significance,” U.S. Attorney General Jeff Sessions said weakly to Cedric Richmond, U.S. Representative from Louisiana and chair of the Congressional Black Caucus, who asked Sessions a series of questions earlier this week at a hearing before the House Judiciary Committee. Giving measure to that “significance,” Sessions also reported, “I do not have a senior staff member at this time that is African-American.”

Richmond went on to ask Sessions about the number of African American U.S. Attorneys appointed under his watch as Attorney General. Sessions touted one such appointee, who Richmond had to point out was the only African American among the 53 U.S. Attorneys confirmed so far during the Trump Administration. (Only three of those 53 are women. Just one – the U.S. Attorney for the District of Columbia – is a woman of color.) Apparently unaware, unconcerned, or simply in favor of this blasé attitude toward such a lack of diversity, earlier this month the Department of Justice twitter account helpfully provided some pictorial evidence of an overwhelmingly white and male Trump Administration U.S. Attorney corps.

Representative Richmond also asked Sessions about the lack of African American appointees to the federal bench under President Trump. Exasperatingly, Richmond knew more about those numbers than apparently the Attorney General did – or at least would admit to knowing. After all, Sessions leads a part of the executive branch, the Justice Department’s Office of Legal Policy, that “assists the Attorney General with responsibilities in recommending candidates for federal judgeships, and coordinates the judicial nomination and confirmation process with the White House and the Senate.” As recent reports have shown, “91 percent of Trump’s 58 judicial nominees for district and appeals courts are white, a pace that would make his appointees the least diverse since the Reagan administration.”

Sadly, those who have followed the career of Jeff Sessions – including his campaign for, and then tenure as, Attorney General of Alabama from 1994 to 1996 – will find little of this surprising. As my organization reported before his confirmation hearings for U.S. Attorney General in January, Sessions campaigned for his first statewide office by fighting to keep African Americans off the bench in Alabama.

Back in 1994, African American voters filed a lawsuit challenging the way appeals court-level judges were (and still are) chosen in the Cotton State. As one news report explained at the time, the lawsuit sought “to end at-large elections for the state appellate courts, including the Supreme Court.” As another report said, there was only one “black justice of the state Supreme Court, and the Court of Civil Appeals and Court of Criminal Appeals always have been all-white.”

Eventually, a complex settlement was hammered out between those voters and the state of Alabama, and approved by U.S. District Judge Myron Thompson, who presided over the case. If carried out, the settlement would have appointed African American judges to the state’s intermediate courts of appeal for the first time in history, in addition to increasing African American presence on the Alabama Supreme Court.

Sessions, however – in his campaign for Alabama Attorney General – helped lead a relentless Republican attack on this plan. The “former U.S. attorney in Mobile,” one article reported, “said the settlement creates a ‘racial quota’ for the courts….” By November 1994, the settlement had become a “key issue” in the Attorney General race. “When I’m elected attorney general,” Sessions promised, “I will do everything in my power to see this settlement overturned and, if necessary, pursue it all the way to the U.S. Supreme Court.” He didn’t have to go that far. Sessions succeeded in killing the settlement in the U.S. Court of Appeals before a panel of three Republican appointees.

To this day – just as when the initial anti-bias litigation was filed 23 years ago – Alabama still has never had an African American judge serve on its Criminal or Civil Courts of Appeal. Meanwhile, unlike 1994, no black judges currently serve on the Alabama Supreme Court. Nothing in the record indicates Sessions ever did anything to help solve this problem, and in the months since he was confirmed as U.S. Attorney General, his antipathy toward a diverse justice system is as evident as ever.

There are still about 40 open U.S. Attorney positions across the country, and nearly 140 Article III judicial vacancies. Meanwhile, the Justice Department’s mission still includes the commitment “to ensure fair and impartial administration of justice for all Americans.” Will Sessions take the opportunity to break from his ugly past, stake out independence from President Trump’s moral equivalency on racism post-Charlottesville, and live up to his Department’s mission by making our justice system look more like America?

That would indeed be a surprise, but it would be a welcome one.

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