Unconfirmed: Judge Frederica Massiah-Jackson

“Unconfirmed” seeks to revisit nominees who were never confirmed to lifetime appointments, to explore the factors why, and to understand the people involved.

If you’ve been nominated to the federal bench, the best case scenario you hope for is that your nomination draws little attention or controversy and that you slide through the process fairly anonymously.  While many judges achieve this, occasionally, a nominee is drawn into a bigger conflict and becomes a pawn in a fight between Congress and the Administration.  This Black History month, we recount one such contentious nominee: Judge Frederica Massiah-Jackson.

Long before her nomination sparked numerous floor fights, Massiah-Jackson was making waves as a student, graduating from Philadelphia Girls High School at just sixteen and finishing law school at the University of Pennsylvania at age 23.[1]  After a clerkship at the Pennsylvania Supreme Court, and seven years in private practice, Massiah-Jackson was elected to be a judge on the Philadelphia Court of Common Pleas at just 33 years old.  Starting in 1992, Massiah-Jackson also began lecturing at the Wharton School, teaching Legal Studies and Business Law.  As such, when President Clinton tapped her to be the first female African-American judge on the U.S. District Court for the Eastern District of Pennsylvania, it seemed the capstone to an already impressive career.

There were no signs of trouble early in Massiah-Jackson’s nomination.  While she had established a reputation as a “liberal, outspoken judge,”[2] she also boasted the support of Pennsylvania’s U.S. Senators Arlen Specter and Rick Santorum, both Republicans.[3]  Even as Massiah-Jackson’s nomination was left off a September 1997 hearing that two other Pennsylvania nominees appeared at,[4] Judiciary Committee Chairman Orrin Hatch (R-UT) assured Specter that Massiah-Jackson’s questionnaire had arrived late to the Committee, and that she would be scheduled for the next hearing.[5]

Unfortunately, the confirmation quickly began to get rocky.   At her hearing in October 1997, Massiah-Jackson faced a series of skeptical Republican senators, with Sen. Jon Kyl (R-AZ) criticizing her use of profanity from the bench in an early case, while Sen. Jeff Sessions (R-AL) called out her rulings in favor of criminal defendants, suggesting that Massiah-Jackson lacked “sufficient respect for prosecutors’ burdens and problems.”[6]  Massiah-Jackson pushed back against that assertion, arguing that “a close reading” of her record would show no pattern of leniency to defendants.[7]

Despite the tenor of the questioning, Specter and Santorum maintained their strong support for Massiah-Jackson and she was approved by the Senate Judiciary Committee in November 1997 on a 12-6 vote.[8]  As the senate prepared to recess, Senate Majority Leader Trent Lott (R-MS) teed up a floor vote in early January 1998.[9]

However, a quick confirmation for Massiah-Jackson was derailed by two incidents.  First, Northampton County District Attorney John Morganelli, a conservative Democrat, announced in early January that he would conduct an “all-out-effort” to block Massiah-Jackson, calling her “anti-police and anti-prosecutor.”[10]  Morganelli was soon joined by the opposition of Philadelphia District Attorney Lynne Abraham and the Pennsylvania District Attorney’s Association.[11]  Additionally, Pennsylvania Attorney General D. Michael Fisher (a future federal judge himself) also weighed in against Massiah-Jackson.[12]  With Pennsylvania prosecutors crusading against Massiah-Jackson’s nomination, Senate Republicans delayed the confirmation vote.

Second, the slow pace of judicial confirmations and the rapid rise in judicial vacancies prompted a rare rebuke of the Senate from both Chief Justice William Rehnquist and President Clinton in his State of the Union address.[13]  Called out from both branches, Senate Republicans were eager to show that Clinton was putting forward unqualified nominees by defeating one in a floor vote.[14]  With Morganelli’s and Abraham’s prominent opposition, Republicans focused on Massiah-Jackson as the ideal test case.

Critics of the Massiah-Jackson nomination made two primary charges against her: first, they pointed to her rulings against the prosecution in 4-5 cases to allege that she had an anti-prosecution and anti-police bias; second, they cited her use of profanity in two cases, and her admonishment from a disciplinary tribunal, to suggest the lack of a proper judicial temperament.[15]  In response, Massiah-Jackson’s supporters accused her critics of “cherry-picking” her record and suggested that the criticism was racially motivated.[16]

Hoping to avoid further acrimony, Specter and Santorum convened a meeting between Massiah-Jackson and critical prosecutors, hoping to have their concerns addressed directly.[17]  Unfortunately, the meeting did not yield a breakthrough, and the senators reluctantly agreed to delay the senate vote further to allow critics to put together “the best evidence against [Massiah-Jackson].”[18]

Unfortunately, by this point, Senate Republicans were coalescing against the nomination.  Confident of defeating Massiah-Jackson, Lott pushed for a quick vote.[19]  However, hoping to salvage the nomination, Specter pushed for a second hearing to allow Massiah-Jackson to publicly refute the charges against her.[20]  In an emotional exchange, Specter clashed on the senate floor with Sen. John Ashcroft (R-MO), with Ashcroft declaring that any senator supporting Massiah-Jackson was “betraying our oath of office,” prompting Specter to call it a “personal insult.”[21]  Ultimately, Specter and Santorum won the day: Massiah-Jackson was pulled back into Committee for a second hearing.[22]

At her second hearing, Massiah-Jackson answered critics over three and a half hours, professing her support for law enforcement and prosecutors.[23] However, alongside previous criticism, a new line of questioning emerged, with Massiah-Jackson accused of “outing” two undercover police officers at a court hearing.[24]  Despite Massiah-Jackson’s supporters arguing that there was no record of the alleged incident, and that, even in the critics’ telling, it was impossible to “out” an officer who had just testified, the allegations were sufficient to draw Hatch, who had previously supported Massiah-Jackson, into opposition.[25]

With the second hearing concluded, the senate prepared for a final vote.  However, Specter once-again demanded a delay to allow Massiah-Jackson a chance to respond to the recent allegations.[26]  However, the vote was rapidly becoming a foregone conclusion, with even Santorum announcing that he would not support the nomination.[27]  Four days later, Massiah-Jackson withdrew her nomination, stating that she could not remain silent as a nominee and allow “selected, one-sided and unsubstantiated charges to go unanswered.”[28]  With her withdrawal, she managed to avoid defeat in an up-or-down vote.

Regardless of whether one accepts the criticisms against Massiah-Jackson, it is difficult to argue that the confirmation process served her well.  Rather, the drip-by-drip release of allegations against Massiah-Jackson, allegations that she, bound by the ethical requirements of a judicial nominee, could not publicly refute, essentially ensured that unsubstantiated claims went unanswered.  As Specter noted in a fiery floor speech, when Massiah-Jackson was given no notice as to the allegations against her, it was “impossible for her to respond in a way which would convince fairminded people as to what the facts were.”[29] Furthermore, while Specter, Santorum and many Philadelphia attorneys went to bat for Massiah-Jackson, she received little public support from the Clinton Administration, who quickly replaced her as a nominee with Judge Robert Freedberg, a white male.[30]

Ultimately, the Massiah-Jackson saga left lingering divisions in Philadelphia, with many african american voters upset at Abraham for her role in the battle.[31]  For her part, Massiah-Jackson was able to stay on the state bench, where she continues to serve to this day.  In an ironic turn of fate, in 2017, Massiah-Jackson led the team of judges that selected Kelley B. Hodge an interim D.A. in Philadelphia upon the resignation of Seth Williams.  Among the candidates rejected for the position: Massiah-Jackson’s old foe Lynne Abraham.

[1] Profiles, Judging Freddie, Penn Law Journal, Fall 2002, https://www.law.upenn.edu/alumni/alumnijournal/Fall2002/feature1/judging.html.  

[2] Joseph Slobodzian, Former Pa. Justice, City Judge Named to Federal Court/Bruce W. Kauffman and Judge Frederica Massiah-Jackson Were Among 13 Picked by Clinton, Philadelphia Inquirer, Aug. 2, 1997.

[3] See id.

[4] See Nominations of Marjorie O. Rendell (U.S. Circuit Judge); Bruce W. Kauffman, Richard A. Lazzara, and A. Richard Caputo (U.S. District Judges), 105th Cong. 13 (1997) (statement of Sen. Arlen Specter).

[5] Letter from Sen. Orrin Hatch, Chairman, Senate Judiciary Committee,, to Sen. Arlen Specter (Sept. 4, 1997) (on file at https://www.loc.gov/law/find/nominations/sotomayor/shrg105-205pt2.pdf).

[6] Steve Goldstein, Phila. Judge Grilled By Senate Panel: A Chilly Aura Pervaded the Hearing for the Federal Court Nominee, Philadelphia Inquirer, Oct. 30, 1997.

[7] See id.

[8] See Chris Mondics, Senate to Vote on Phila. Judge’s Nomination, Philadelphia Inquirer, Nov. 14, 1997.

[9] Id.

[10] Robert Moran, D.A. Out to Block Phila. Judge’s Nomination to U.S. Bench, Philadelphia Inquirer, Jan. 7, 1998.

[11] See Linda Lloyd, Pa. District Attorneys’ Group Votes to Oppose Phila. Judicial Nominee, Philadelphia Inquirer, Jan. 9, 1998.

[12] See City & Region, Pa.’s Attorney General Opposes Massiah-Jackson, Philadelphia Inquirer, Jan. 30, 1998.

[13] See id.

[14] See Chris Mondics, U.S. Bench Vacancy Splits GOP in Senate, Philadelphia Inquirer, Feb. 11, 1998.

[15] See Michael Matza, The Cases Behind the Massiah-Jackson Controversy/ Prosecutors Say the Judge is Harsh on Them and Lenient in Sentencing. Defense Lawyers Praise Her Decisions, Philadelphia Inquirer, Jan. 21, 1998.

[16] Suzette Parmley, Blacks Denounce D.A./ A Group of Leaders Wants Lynne Abraham Recalled for the way She Opposed the Nomination of Judge Frederica Massiah-Jackson to the Federal Bench, Philadelphia Inquirer, Jan. 13, 1998.

[17] See Michael Matza, Massiah-Jackson Vote is Postponed in Senate/ Sens. Specter & Santorum Give Her Critics A Week to Make Their Case, Philadelphia Inquirer, Jan. 24, 1998.

[18] See id.

[19] Chris Mondics, Senator Doubts Judge’s Chances/Sen. Rick Santorum Said the Votes Are Not There for Frederica Massiah-Jackson’s Nomination, Philadelphia Inquirer, Feb. 5, 1998.  

[20] Chris Mondics, Specter Asks More Hearings for Judge Massiah-Jackson/ Her Nomination to the Federal Bench is in Trouble. The Senator Thinks Another Session Could Change That, Philadelphia Inquirer, Feb. 6, 1998.

[21] Chris Mondics, US Bench Vacancy Splits GOP in Senate/ Republicans Spoke Out Emotionally For and Against Clinton’s Nomination of Frederica Massiah-Jackson, Philadelphia Inquirer, Feb. 11, 1998.

[22] See id.

[23] Chris Mondics, Judge Answers Her Critics/ Massiah-Jackson Tells Senators She Backs Police, Prosecutors, Philadelphia Inquirer, Mar. 12, 1998.

[24] Michael Matza, Courtroom ‘Outing’ Ignites Latest Fire Around Judge/ Frederica Massiah-Jackson Allegedly Pointed Out Two Undercover Narcotics Officers, But this ‘Smoking Gun’ May be Just Smoke, Philadelphia Inquirer, Feb. 15, 1998.

[25] See id.

[26] Chris Mondics, Massiah-Jackson Voting is Delayed/ Sen. Specter Wanted Her to Have Time to Respond in Writing to the Latest Allegations, Philadelphia Inquirer, Mar. 13, 1998.

[27] See id.

[28] AP, Controversial Judge Withdraws as Nominee to Federal Bench, N.Y. Times, Mar. 17, 1998.

[29] See 105th Cong. Rec. S3618 (daily ed. Mar. 16, 1998) (statement of Sen. Specter).

[30] The seat was ultimately filled by another african american female: Judge Petrese Tucker.

[31] See Tom Infield, Abraham Faces a Genuine Challenge; Though the D.A. is Favored to Win Re-election, Some Black Philadelphians View Her as a Symbol of a Biased System, Philadelphia Inquirer, May 13, 2001.

Unconfirmed: Judith Richards Hope

“Unconfirmed” seeks to revisit nominees who were never confirmed to lifetime appointments, to explore the factors why, and to understand the people involved.

On February 5, 1988, Robert Bork resigned his seat on the U.S. Court of Appeals for the D.C. Circuit, having served less than six years on the bench.[1]  In the previous year, Bork had endured a famously contentious and bitter battle for a seat on the U.S. Supreme Court.  While Bork sought to move on from the bench, his resignation would trigger another confirmation battle, leaving a well-respected D.C. litigator and trailblazer as its casualty.

Shortly after Bork’s resignation, the Reagan Administration quickly settled on a nominee: U.S. District Judge Karen Henderson.[2]  Henderson was young, conservative, and had the solid support of Judiciary Committee Ranking Member Strom Thurmond.[3]  Furthermore, Henderson was a woman, and satisfied Democratic Sen. Edward Kennedy’s push for more female and minority judges.[4]  However, with Henderson’s name all but ready to move forward, the judge unexpectedly withdrew from the process, citing family considerations in South Carolina.[5]  This left the Reagan Administration turning to their back-up, a prominent D.C. lawyer named Judith Richards Hope.

Hope was born Judith Richards in Cincinnati, the daughter of a Methodist minister and a social worker.  Hope grew up in the small town of Defiance, Ohio and started work at the age of twelve in a dry-cleaning plant, getting paid twenty-five cents an hour.[6]  She attended Wellesley College, graduating magna cum laude in 1961 and joining Harvard Law School as one of just fifteen women in her class.[7]  Hope graduated Harvard in 1964 alongside stalwarts including future Supreme Court Justice Stephen Breyer and future D.C. Circuit Judge Judith Ann Wilson Rogers.

By 1988, Hope had established herself as one of D.C.’s most prominent attorneys.  She had become a partner at Paul, Hastings, Janofsky & Walker, becoming the first woman to serve on the firm’s Executive Committee.  Furthermore, Hope had served on the White House Domestic Council in the Ford Administration and as vice chair of the President’s Commission on Organized Crime under Reagan.  In 1984, Hope served as the Chairwoman of Lawyers for Reagan-Bush.[8]  Additionally, she had a thriving practice, with clients including prominent screenwriter Nora Ephron.[9]

Despite her credentials, the Reagan Administration was unenthusiastic about her nomination, specifically doubting her commitment to conservative judicial principles.[10]  Additionally, Hope was reluctant to take the judgeship, which would constitute a significant pay cut.[11]  Nevertheless, with an important seat at stake, Reagan personally called Hope and persuaded her to accept the nomination.[12]  With her acquiescence, on April 14, 1988, Reagan officially nominated Hope for the vacancy.

Unfortunately for Hope, Bork’s resignation had left a tenuous balance on the D.C. Circuit, with six Reagan-appointed conservatives countering five older liberals (including future Supreme Court Justice Ruth Bader Ginsburg).[13]  Furthermore, one of the leaders of the court’s liberal wing, Judge Spottswood Robinson, was facing health issues and was considering retirement.[14]  As such, many Democrats sought to block any Reagan appointee to the court, preferring to leave the seat open for a Dukakis appointment.[15]  However, other liberals argued that the moderate Hope was the best nominee they were likely to get from a Republican Administration, noting that, if Bush won the election, he would likely nominate a more conservative candidate.[16]  Caught between the two sides, Senate Judiciary Committee Chair Joe Biden declined either to block Hope outright or to move her nomination forward.  Instead, her nomination sat in limbo.

Hoping to end the embargo on Hope’s nomination, Judiciary Committee Republicans excoriated the Democratic majority, with Sen. Alan Simpson calling the lack of action “inane, banal, and childish.”[17]  The attacks did not have the desired effect, however, as Democrats chose not to include Hope’s nomination in their final hearing of the year.  In his defense, Biden pointed out that he had processed “at least 10 more judges” than Republicans expected to get.[18]

Desperate, the White House reached out to Senate leaders seeking to put a package of nominees together for confirmation and noting that Hope was one of their top priorities.[19]  However, the outreach backfired.  As one journalist noted, “[p]recisely because the White House wanted them so badly, the Democrats were determined to bury…Hope”[20]  Instead, Democrats and Republicans cut a deal on a package that left out Hope.  As the 100th Congress came to an end, so did Hope’s nomination.[21]

Unfortunately for those hoping for a more liberal D.C. Circuit, Vice President George H.W. Bush kept the presidency in Republican hands in the 1988 election.  Paradoxically, this also hurt Hope’s chances as, during the 1988 primaries, she had advocated for a different candidate: Senate Republican leader Robert Dole.[22]  Perhaps sensing the political difficulties, Hope announced that she would not seek renomination, and Bush filled the vacancy with the then-Chairman of the Equal Employment Opportunity Commission, an African African conservative named Clarence Thomas.[23]

With Thomas’ subsequent elevation to the Supreme Court, it is hard not to wonder what could have been.  At only forty-seven at the time of her nomination, would the relatively moderate Hope have become the stealth candidate to replace Justice Brennan, rather than then-Judge David Souter?

Stepping back, it is clear that the nomination’s defeat had little to do with Hope.  Had she been nominated at a different time (or under a different Senate), Hope would likely have sailed to confirmation.  For her part, Hope has continued to blaze a trail for other female judges and attorneys, mentoring many as a law professor at Harvard and Georgetown.  She remains to this day one of the luminaries of Harvard Law School and the legal profession.

[1] Ruth Marcus, Robert Bork’s Last Day on Bench a Busy One; Judge Quotes Dr. King: ‘Free at Last’, Wash. Post, Feb. 6, 1988.

[2] Ruth Marcus, Woman from South Carolina Top Choice to Replace Bork; Trial Judge Recommended for D.C. Court, Wash. Post, Feb. 26, 1988.

[3] See id.

[4] See id.

[5] Ruth Marcus, Top Candidate for Bork Seat Drops Out; S. Carolinian Cites Personal Reasons, Wash. Post, Mar. 4, 1988.

[6] Judith Richards Hope, Pinstripes & Pearls: the Women of the Harvard Law School Class of ‘64 Who Forged an Old Girl Network and Paved the Way for Future Generations 7 (Lisa Drew Book/Scribner 2003).

[7] See id.

[8] Susan F. Rasky & Linda Greenhouse, Washington Talk: Briefing: A Second Chance?, N.Y. Times, Nov. 18, 1988, http://www.nytimes.com/1988/11/18/us/washington-talk-briefing-a-second-chance.html.  

[9] See Chuck Conconi, Divorce with a Heartburn Clause, Wash. Post, June 28, 1985 (noting Hope as Ephron’s attorney).

[10] See Ruth Marcus, Woman D.C. Lawyer Picked to Succeed Bork, Sources Say; Reagan Reportedly Persuaded Her to Serve, Wash. Post, Mar. 24, 1998.

[11] See id.

[12] See id.

[13] Saundra Torry, D.C. Lawyer’s Nomination to Court of Appeals Appears Stalled, Wash. Post, Sept. 9, 1988.

[14] See id.

[15] See id.

[16] See id.

[17] Id.

[18] See Ruth Marcus, Reagan’s Judicial Nominees Face Judgment Day on the Hill, Wash. Post, Oct. 5, 1988.

[19] See Steven V. Roberts, Washington Talk: The Senate; As Adjournment Nears, Cutting a Judicial Deal, N.Y. Times, Oct. 19, 1988.

[20] See id.

[21] Jill Abramson, Failure of Appeals Court Nomination Means Next President to Fill Key Post, Wall Street Journal, Oct. 14, 1988.

[22] Susan F. Rasky & Linda Greenhouse, Washington Talk: Briefing: A Second Chance?, N.Y. Times, Nov. 18, 1988, http://www.nytimes.com/1988/11/18/us/washington-talk-briefing-a-second-chance.html.  

[23] Ruth Marcus, EEOC Chief is Eyed for U.S. Court; Expected Nomination Pleases Conservatives, Wash. Post, May 9, 1989.

Unconfirmed: Fred Gray

Judicial confirmation is a business.  Over the last thirty years, a cottage industry of interest groups, nonprofits, and lobbying agencies have formed to support and oppose judicial candidates.  Behind the rhetoric on both sides, it is sometimes easy to forget that nominees are people: people who are frequently forgotten once their nominations are blocked or defeated.   “Unconfirmed” seeks to revisit nominees who were never confirmed to lifetime appointments, to explore the factors why, and to understand the people involved.  On this Martin Luther King Day, where better to start this series than with one of King’s fellow civil rights leaders, whose rejection for the federal bench was laced with allegations of racism and prejudice: Fred Gray.

When Jimmy Carter was elected Governor of Georgia in 1970, Fred Gray was already one of the most famous civil rights attorneys in the nation.  A native Alabamian, Gray was born in Montgomery in 1930, and grew up in a segregated city.  While attending an all-black school, Gray worked as a “boy preacher”, ministering to interracial crowds throughout his youth.[1]  After graduating from the Alabama State College for Negroes in 1951, Gray found himself barred from admission at an Alabama law school due to his race.  Nevertheless, Gray attended Case Western Reserve School of Law in Ohio, getting a J.D. in 1954, and returning to Montgomery shortly thereafter to fight segregation.

Back in Montgomery, Gray represented Rosa Parks and the Rev. Martin Luther King Jr. in litigation stemming from the Montgomery Bus Boycott in 1955, as well as serving as lead counsel in Browder v. Gayle, which desegregated city buses nationwide.[2]  Gray also represented King in his tax evasion case, securing an acquittal from an all-white jury.[3]  Gray also successfully argued that Alabama State students who were expelled for participating in student sit-ins had their due-process rights violated, and successfully filed to protect marchers seeking to march from Selma to Montgomery in 1965.[4]

Furthermore, Gray also argued on behalf of African Americans at the Supreme Court in Gomillion v. Lightfoot.[5]  Among his other accomplishments, Gray was the leading attorney in successfully desegregating the University of Alabama and Auburn University, despite the opposition of politicians including Gov. George Wallace.[6]  In one of his most notable cases, Gray represented the African American victims of the Tuskegee Syphilis Study.[7]  Finally, in 1970, Gray was the first African American elected to the Alabama legislature, alongside Thomas Reed.[8]

When Carter was elected president in 1976, he and Attorney General Griffin Bell met with Coretta Scott King and assured her of their commitment to place qualified African American judges on the federal bench.[9]  In 1979, Gray was one of five candidates considered by Carter and Bell for the U.S. Court of Appeals for the Fifth Circuit.[10]  Despite his commitment to King, and Gray’s strong backing from Alabama African American groups, Bell declined to recommend Gray for the seat, ranking him fifth out of the five candidates being considered.[11]  The nomination and the seat instead went to the candidate ranked fourth, a white lawyer named Robert Vance.[12]

Instead, in 1979, Gray was recommended by Alabama Senators Howell Heflin and Donald Stewart (both Democrats) for a seat on the U.S. District Court for the Middle District of Alabama.[13]  However, despite the recommendation, the Carter Administration sat on Gray’s nomination for several months, allegedly due to Bell’s opposition.[14]  It took the personal intervention of Alabama African American power broker Joe Reed to break the impasse and allow Gray to be nominated officially in January 1980.[15]

Unfortunately for Gray, more obstacles stood ahead.  Citing Gray’s alleged misconduct on a bond issue as Tuskegee City Attorney, the American Bar Association (ABA) rated Gray “unqualified” for a federal judgeship.[16]  Additionally, Sen. Edward Kennedy, Chairman of the Senate Judiciary Committee, was challenging Carter in the Democratic Presidential Primary and believed that Gray’s nomination was intended to “buy” black votes in the Alabama Democratic primary.[17]  This gave him little incentive to disregard the ABA rating and move ahead on Gray’s nomination.

In response to the ABA rating, the National Bar Association, which is predominantly African American, stepped in to rate Gray and fellow black nominee U.W. Clemon, rating them “very well qualified.”[18]  In May 1980, Gray finally came before the Senate Judiciary Committee, sitting through a marathon 12-hour hearing.[19]  At the hearing, Gray’s supporters, including Clarence Mitchell from the Leadership Conference on Civil Rights, argued that the ABA’s opposition to the nomination was tinged by racism.[20]  In response, the ABA, represented by San Francisco attorney Robert D. Raven, fought back, noting:

“Do you think we want to find black judges unqualified?  Do you think we’re fools?”[21]

Ultimately, the hearing did not result in further action on Gray’s nomination.  In August 1980, Heflin withdrew his support for Gray.[22]  Facing certain defeat, Gray withdrew his nomination.[23]  In Gray’s place, Carter nominated an African American attorney in private practice in Montgomery, Myron Thompson.[24]  Despite Thompson being only thirty-three years old, he received a “qualified” rating from the ABA and was confirmed on September 26, 1980.[25]

Looking back on Gray’s short-lived judicial nomination, it is difficult to take race out of the equation.  Even if one accepts that the ABA’s rating was not based on Gray’s race (and there were many, even in 1980, who did not), it is hard to accept the conclusion that Gray, given his distinguished career, was unqualified for the federal bench where a thirty three year old attorney was not.  Nevertheless, while Gray was not able to take the bench, he broke barriers nonetheless.  In 2001, Gray became the first black president of the Alabama Bar and continues to be a civil rights leader today.[26]  Ultimately, Gray remaining unconfirmed in no way diminishes his significant legal achievements or his stature in the legal community.

[1] Barclay Key, Encyclopedia of Alabama “Fred Gray”, http://www.encyclopediaofalabama.org/article/h-1510 (last visited Jan. 14, 2018).

[2] Sheldon Goldman, Picking Federal Judges 266 (Yale University Press 1997).

[3] See Key, supra n.1.

[4] See id.

[5] 364 U.S. 339.

[6] Barclay Key, Encyclopedia of Alabama “Fred Gray”, http://www.encyclopediaofalabama.org/article/h-1510 (last visited Jan. 14, 2018).

[7] See id.

[8] See id.

[9] Sheldon Goldman, Picking Federal Judges 266 (Yale University Press 1997).

[10] See id. at 272.

[11] See id.

[12] Id.

[14] See id.

[16] See id.

[17] See id.

[18] See McFadden, supra n.13.

[19] See Babcock, supra n.11.

[20] See id.

[21] See id.

[22] Sheldon Goldman, Picking Federal Judges 267 (Yale University Press 1997).

[23] See id.

[24] See id.

[25] See id.

[26] Barclay Key, Encyclopedia of Alabama “Fred Gray”, http://www.encyclopediaofalabama.org/article/h-1510 (last visited Jan. 14, 2018).