Storming the Court?

Not long after President Obama’s election, the former Chief Judge and one of the most conservative members of the 4th Circuit Court of Appeals wrote a startling and unprecedented op-ed that appeared in the Washington Post called “Storming the Court.” In it, Judge J. Harvie Wilkinson, who for years joined with Jesse Helms in opposing the addition of additional judges to the 4th Circuit because, he said, it would interfere with “ the collegial decisionmaking”of the then-all-white court, offered his “pray[er] that coming appointments to our court will not cause the doors of communication and compromise to slam shut.”

The piece was a stunning breach of manners and an embarrassing display of unwarranted hysteria about what Wilkinson described as rumors of a political “takeover” of the 4th Circuit. But it was also revealing. What Wilkinson seemed to fear most was the possibility that the appointment of judges with a strong left-leaning ideological bent – judges who might bring greater balance to the court – would upset the apple cart. And so he should.

Courts of appeals should not be country clubs where like-minded gentlemen come together to discuss the pressing matters of the day over a glass of port. Nor must our courts become boxing rings. Liberal justices are just as capable of respectful, collegial discourse and engagement as conservatives. But appellate court decision making lends itself naturally to the interplay of disparate ideas and viewpoints. Our courts of appeals should include judges who reflect a range of experiences, backgrounds and judicial philosophies. It is within the crucible of rigorous interchange between these judges – an interchange marked by respect and adherence to the rule of law -- that our laws are best tested and explicated. This kind of rigorous discourse in judicial decision making is only enhanced by the diversity of judges, not threatened by it.

The recent, long-awaited confirmation of U.S. district court Judge Andre Davis of Maryland to the 4th Circuit last week draws our attention back to the important issue of the President’s federal circuit court appointments. The 4th Circuit in particular garners a good deal of attention, because it has been widely regarded as the most conservative of the federal circuits. Encompassing the states of Maryland, Virginia, West Virginia and North and South Carolina, the 4th only received its first black judge in 2000 with President Clinton’s recess appointment of Roger Gregory. Before that, President Clinton had nominated 3 black candidates – only to have them held up by North Carolina Senator Jesse Helms.

Judge Davis was one of those who were nominated by Clinton, only to languish at the behest of Helms. As proof that what comes around goes around, another of those black judges nominated by Clinton and blocked by Helms -- Judge James Wynn -- was nominated just last week by President Obama to fill another vacant seat on the 4th Circuit. Judge Wynn has been a judge on the North Carolina Court of Appeals and is a widely respected leader in the American Bar Association (He’s chaired that organization’s committee on Judicial Independence.) A former public defender, Wynn is also a military man.

On the same day Obama nominated Wynn, the White House also nominated Alberto Diaz, a state trial court judge from North Carolina to the 4th Circuit – completing a trifecta of racial diversity on a court whose multi-state jurisdiction contains the highest percentage of African Americans of any federal circuit court.

President Obama’s focus on bringing bringing diversity to the Court is admirable. These candidates bring not only racial diversity, but professional diversity as well: Former public defenders like Wynn are rarely selected to serve on our federal courts of appeal. The inclusion of former state court judges on the Circuit courts is yet another important infusion of diversity into appellate judicial decision making.

But our circuit courts are in desperate need of other kinds of diversity as well. Gender diversity, for example, continues to be an issue. With the addition of Wynn and Diaz, the 4th Circuit, will have 14 judges -- but only 2 of them are women. The 8th Circuit Court of Appeals, which encompasses 7 mid-western states, has only had one woman judge to sit on the bench. With the loss of Judge Sotomayor, the 2nd Circuit Court of Appeals has only 3 active women judges.

Even more pressing is the need for greater ideological diversity. Future nominations should also include the appointments of judges with a track record of a strong liberal ideology, particular given the number of conservative judges have been appointed by three of the last four presidents, who were all Republican.

President George W. Bush in particular is widely regarded as having hewed consistently to his promise to appoint strong conservatives to our federal courts --- especially the courts of appeals. Even President Clinton, on the mistaken view that he might win points with Republicans, frequently sought judges from the ideological center. To bring balance to our courts, President Obama will need to make some bold choices from among liberal lawyers and judges.

It goes without saying that any judge, whether conservative, centrist or left-leaning, needs to have the intellectual heft and professional stature that we should expect of any judge nominated to the court of appeals. But President Obama should not be reluctant to push the envelope and nominate liberal judges to the Courts of Appeal. Centrist judges will not balance judges on the right – left balances right.

Bringing greater diversity and balance to the Courts of Appeals is a complicated undertaking. Racial diversity and gender diversity alone will not correct the rightward lurch of our federal courts. The President has appropriately identified diversity in professional background as an important area for improvement. But ideological diversity, though more controversial, must be attended to as well. The President is well on his way to bringing needed balance to our courts (some of his appointments to federal trial courts throughout the country have been particularly encouraging). The President need not “storm the courts,” but it seems entirely in order to kick up a squall or two.

Sherrilyn A. Ifill is a regular contributor to The Root.