The GOP’s Judicial Delays and the Cost to Minorities

The flimsiness of the arguments against Bill Lann Lee to head the Justice Department’s civil rights division has led to charges that his opponents are motivated by racism. These charges have been indignantly condemned by the Washington Post, among others, as “reckless, unfounded and disgusting.” There may, however, be some real racist fire behind the smoke of these charges.

Obviously, there can be no direct evidence of racism, especially today, when no one dares admit to such a motivation. But a closer look at not just the Lee nomination but at the similar treatment of minority nominees for the federal judiciary raises disturbing questions.

During the 1997 session of the current Congress, 36 judges were confirmed; three more were confirmed on Jan. 28 this year. This is an usually small number, especially given the large number of vacancies, many considered by the Administrative Office of the Courts to be “judicial emergencies.” The average number of judges appointed annually during the 12 Reagan-Bush years was 47, or almost one-third more than in 1997. At the end of the last session of Congress, 42 judicial nominations were pending.

This slowdown, condemned even by Chief Justice William H. Rehnquist, reflects the avowed Republican strategy to ensure that the Reagan court packing, which made the federal courts into a white conservative bastion, endures as long as possible. Some 528 Reagan appointees out of 570, or 93%, were white. Most of the 1997 Clinton appointees replaced judges appointed by Democratic presidents, leaving the federal bench, particularly the courts of appeal, where most of our law is made, overwhelmingly Republican and overwhelmingly white.

The charges of racial bias are based in part on the fact that of the 39 judges confirmed in the 105th Congress (including the three in January), only five are minority (13%)--four blacks, one Asian and no Latinos--though 20 of the 79 nominations to the federal bench in 1997, or about 25%, were minority.

Moreover, when we look at how long nominees have waited before being acted on by either the full Senate or the Senate Judiciary Committee, more disturbing facts emerge. As of the end of 1997, of the 15 pending nominations of longest duration, eight, or more than half, were minority. They averaged 594 days, or about 20 months; according to the Administrative Office, the average number of days from nomination to confirmation in the 18 years from Jan. 1, 1979 to Oct. 4, 1996, was 78, or about two and a half months. Of those currently pending, 10 have waited 18 months or more, and of those, six are minority, five of whom have waited more than two years.

By contrast, of the 15 shortest confirmation processes, all but one were of white candidates. These 15 averaged 84 days, just six above the 18-year average.

Right-wing GOP tactics involving the nomination of Margaret M. Morrow, who was confirmed last week, are also suggestive of racial bias. Morrow, a white female, was held up for more than two years before the GOP allowed a floor vote. They claimed she was a potential “judicial activist.” When the vote came, she sailed through easily, 68-27. The Republicans realized they had no case against her and instead decided to train their fire on Frederica Massiah-Jackson, a Philadelphia judge, for “excessive leniency.” Massiah-Jackson is African American. Coincidence?

Overall, only a quarter of the minority candidates (five of 20) have been confirmed but almost 60% (34 out of 59) of the white candidates.

The racial implications of these facts and figures are bolstered by the baselessness of the charges against the minority candidates.

The Lee case is well-known. He is the hero of a classic Horatio Alger story; no one doubts his qualifications or his integrity. Sen. Spencer Abraham (R-Mich.), one of his chief opponents, says, however, that he does not like Lee’s position on pending prison-reform legislation. Yet, Lee, the “acting” head of the Justice Department’s civil-rights division, is not in charge of this, Associate Atty. Gen. Ray Fisher is. Abraham did not even ask Fisher about the legislation, yet he voted for Fisher. As his justification for blocking Lee without even allowing a Senate vote on him, Judiciary Committee Chairman Orrin G. Hatch (R-Utah) has charged that Lee “pressured” Los Angeles on an affirmative-action case. (Isn’t that what lawyers always try to do to their opponents?) But Republican Mayor Richard Riordan of Los Angeles and his corporation counsel promptly refuted that.

Judge James Beaty is a distinguished African American federal district judge from North Carolina. He was nominated to the 4th Circuit Court of Appeals. Nominated in December 1995, he would be the first black appellate judge on that circuit, which extends from from Maryland to South Carolina. He received a unanimous “well-qualified” rating from the American Bar Assn.--its highest rating. The charge against him? He joined a three-judge panel of the 4th Circuit (where he temporarily sat) that “release[d] a convicted double murderer on a technicality,” according to Hatch. The “release” was not a release but a new trial, and the basis was not a “technicality” but a major and indisputable error--a juror visited the crime scene without authorization. For more than two years, Beaty has not gotten even a hearing.

Clarence J. Sundram, an Asian American born in Bombay, India, has faced an equally dubious delay. Since he is a former student, I know him particularly well. A district-court seat has been vacant in upstate New York since 1992; the court has a backlog of more than 3,000 cases. Sundram, a 48-year-old chairman of the state’s Commission on Quality of Care for the Mentally Disabled, was nominated to that seat in September 1995. Sen. Jefferson B. Sessions III (R-Ala.), who was himself denied a federal judgeship in 1986 because of his racist comments and behavior (he once said he thought the Klu Klux Klan “was OK until I learned that they smoked pot”), and who prosecuted civil-rights activists without justification, opposes him because of articles and memos Sundram wrote as a student some 25 years ago on legalizing marijuana, which Sundram opposes, and on prisoners rights. Sessions is so wrong about the articles that even Hatch doesn’t go along, but Sessions has effectively blocked the nomination.

Richard A. Paez, a Latino federal district judge nominated for the woefully undermanned 9th Circuit Court of Appeals on the West Coast, rounds out the picture. The 9th Circuit has no black judges and one Latino. Paez was nominated in January 1996 and received a unanimous “well-qualified” rating from the ABA, but did not get even a hearing during 1997. So far, no explanation is given for the delay.

The reasons given for the blocking of other minority candidates are no more impressive.

There may be another explanation than racial animus for the delays, but the effect is the same: Minorities are kept off the federal bench. The litmus test being applied by right-wing Republican senators is affirmative action and sensitivity to the rights of minorities. Minority candidates are more likely than others to be both supportive of affirmative action and to have such a sensitivity. They are thus vulnerable to the GOP right’s long-standing opposition to civil rights in whatever contexts these issues arise, and will rarely pass the right’s screen.

At a time when this nation is becoming increasingly aware of its vast diversity, the GOP right-wing is using its power in the Senate to keep the federal bench as monochrome as possible.