Unconfirmed: Prof. Wenona Whitfield

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

Judicial nominations don’t always fail due to high-profile political opposition.  Sometimes, nominations fail because staffers or White House attorneys raise personal objections.  The late Illinois Senator Paul Simon (no, not that Paul Simon) includes one such nomination story in his 1999 autobiography, that of Prof. Wenona Whitfield.[1]

When Bill Clinton was elected in 1992, the federal bench in Illinois had many vacancies, including two on the U.S. District Court on the Southern District of Illinois.  To fill these vacancies, Simon created an advisory committee to choose candidates for the federal bench, alongside fellow Senator Carol Moseley-Braun.[2]  To head the Committee for the Southern District, Simon chose Hiram Lesar, the former dean of the Southern Illinois University School of Law (SIU Law).[3]  For his part, Lesar recommended one of the University’s property professors: Wenona Whitfield.

Whitfield had a long history in the legal community of Southern Illinois.  She received a B.A. from Illinois Wesleyan in 1970 and a J.D. from SIU Law in 1977.[4]  Just a few years later, Whitfield began teaching at SIU Law, teaching Property and Health Law.[5]  Having had more than a decade of teaching experience by the time Clinton came into office, Whitfield’s nomination in March of 1995 made her poised to become the first African-American judge and the first woman on the Southern District of Illinois.[6]

Whitfield’s nomination was not initially considered controversial.  The Chief Judge of the Southern District, Judge Phil Gilbert (a Republican appointed by President George H.W. Bush) strongly supported Whitfield, and her initial meetings with Republican members of the Senate Judiciary Committee went smoothly.[7]  According to Simon, then-Chairman of the Senate Judiciary Committee Orrin Hatch (R-UT) assured him that he “would do everything he could to help [Whitfield].”[8]

However, Simon notes, Hatch’s staff put the brakes on the nomination, citing the fact that Whitfield was a recovering alcoholic.[9]  Seeking to alleviate their concerns, Whitfield assured the Committee that she would resign before letting her condition affect her work on the bench.[10]  This assurance, along with Simon’s lobbying, led to Hatch giving Whitfield a hearing on July 31, 1996.[11]

Unfortunately, the hearing, already late in the 1996 Presidential election cycle, did not lead to further movement on Whitfield’s nomination.  According to Simon, Hatch indicated that he wanted to move Whitfield through the Committee, but couldn’t, due to opposition from Senate Majority Leader Trent Lott (R-MS).[12]  However, when Simon took the matter directly to Lott, he contradicted Hatch’s account, noting that both his parents were alcoholics and that, as such, he had no opposition to Whitfield.[13]  Lott promised to move Whitfield to a floor vote if she passed through Committee.[14]  Upon going back to Hatch, he reiterated his position on Whitfield, maintaining that Lott was the barrier to a final vote.[15]  Ultimately, the impasse was never settled and Whitfield was never confirmed by the Senate.

After his re-election, Clinton chose not to re-nominate Whitfield (her chances were likely hurt by Simon’s retirement).  Instead, on April 28, 1998, Clinton nominated Illinois State Judge David Herndon to fill the seat.  Herndon’s nomination moved relatively smoothly and he was unanimously confirmed on October 21, 1998.

As for what happened with Whitfield’s nomination, Simon maintains that the opposition stemmed from Hatch or more specifically, Hatch’s staff, noting:

“I sense that his staff saw a black woman and that “spelled” liberal to them.”[16]

To be fair, it remains unclear as to whether the objections to Whitfield’s personal background were pretextual.  Under Hatch’s leadership, the Senate did confirm ten African American female nominees put forward by Clinton.  However, many qualified African American women were also rejected under Hatch’s tenure, including Judge Frederica Massiah-Jackson.

As for the Southern District of Illinois, it did not receive a female or an African American judge until 2014, when Judges Nancy Rosenstengel and Staci Yandle were confirmed.

[1] Paul Simon, P.S.: The Autobiography of Paul Simon 192-93 (Bonus Books Inc. 1999).

[2] See id. at

[3] Id.

[4] See Wenona Whitfield, Biography at the SIU School of Law, http://www.law.siu.edu/our-people/faculty/adjunct/whitfield.html.  

[5] Id.

[7] See Simon, supra n. 1 at 192.

[8] Id. at 192-93 (quoting Orrin Hatch).

[9] Id. at 193.

[10] Id.

[12] See Simon, supra n. 1 at 193.

[13] Id. (quoting Trent Lott).

[14] Id.

[15] Id.

[16] Id.

Unconfirmed: Sherman Unger

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

On December 13, 2017, L. Steven Grasz became the first judicial nominee to be confirmed by the Senate despite being rated unanimously “Not Qualified” by the Standing Committee on the Federal Judiciary of the American Bar Association (ABA).[1]  To appreciate the eroded power of the ABA with regard to nominations, we look back to a nomination that ABA opposition stopped: Sherman Unger.

Born in Chicago on October 9, 1927, Unger developed his legal career in Ohio, working as a Cincinnatti based partner at Frost & Jacobs.  In 1969, the newly elected Richard Nixon chose Unger to be General Counsel to the U.S. Department of Housing and Urban Development.[2]  Unger returned to private practice in 1971 and stayed there for the next ten years.  In 1981, new President Ronald Reagan tapped Unger again to be General Counsel to the Department of Commerce.

In 1982, Congress created the U.S. Court of Appeals for the Federal Circuit, a specialized tribunal to hear patent case appeals from across the nation.  In doing so, they elevated all the judges on the U.S. Court of Customs and Patent Appeals and the appellate division of the U.S. Court of Claims, and created an additional twelfth seat to round out the court.  For appointment to this twelfth seat, U.S. Attorney General William French Smith recommended Unger.[3]  In his recommendation letter to the White House, Smith indicated that an ABA rating on Unger was not yet available, but recommended the nomination nonetheless.[4]  On December 15, 1982, Unger was formally nominated to the U.S. Court of Appeals for the Federal Circuit.[5]

Unfortunately, the ABA soon weighed in, and it wasn’t pretty: the Standing Committee unanimously found Unger “Not Qualified” for the judgeship.[6]  Faced with the unfavorable rating as they entered the 97th Congress, the Reagan Administration hesitated to renominate Unger, waiting until April 21, 1983 before doing so.[7]  Meanwhile, the Senate Judiciary Committee decided to undergo its own investigations and held hearings to allow the ABA to testify on the nomination.[8]

Over the course of five hearings, Unger, the ABA, and other witnesses testified on the nomination.[9]  ABA Representatives Brooksley Born and William Thaddeus Coleman Jr. claimed that Unger “lacked the personal integrity” to be a federal judge, citing several instances of misconduct.[10]  Specifically, they argued that Unger had a history of unethical behavior, including “falsifying affidavits, making improper contact with a bankruptcy judge, receiving improper payments in a bankruptcy case and failing to report $40,000 in income on his 1968 federal tax returns.”[11]  In response, the White House noted that many prominent lawyers, including Carter Administration officials Lloyd Cutler and Griffin Bell, had reached out to the Committee and the ABA in support of Unger’s nomination.[12]

In a hearing before the Committee on October 27, 1983, Unger acknowledged “mistakes” that he had made in the past but argued that he was a “good trial lawyer” and “an honest man.”[13]  Despite his plea, the Committee did not take further action on the nomination.[14]  Shortly after Congress adjourned that year, Unger passed away from cancer: he was 56 years old.[15]

Looking back on the Unger nomination and his untimely death, one can argue that the Senate Judiciary Committee’s refusal to process his nomination was particularly cruel.  However, at least one scholar has speculated that the lack of action was intended as a courtesy to Unger in his final months.[16]  After all, the Committee was aware of Unger’s cancer diagnosis (Unger himself acknowledged it in the Oct. 27 hearing).[17]  Furthermore, even though the Committee was controlled by Republicans, the lack of ABA support and the seriousness of the allegations against him made it likely that Unger would have been rejected on a direct vote.[18]

As for the Reagan Administration, they chose South Carolina lawyer Jean Galloway Bissell for the unfilled vacancy, and Bissell was swiftly confirmed.  However, the lingering anger against the ABA for its treatment of Unger remained.  While Unger was the only appellate nominee to get a unanimous “Not Qualified” rating in the Reagan presidency, his treatment, alongside those of other nominees, provided the motivation for the Bush Administration’s rejection of ABA pre-screening of nominees, a move the Trump Administration followed.[19]  In a sense, we are still living with the post-Unger universe with regard to judicial nominees and the ABA.

[1] AP, Leonard Steven Grasz, Trump Judicial Nominee Rated As “Not Qualified,” Oked By Senate, CBS, Dec. 13, 2017, https://www.cbsnews.com/news/leonard-steven-grasz-trump-judicial-pick-not-qualified-okd-senate/.  

[2] Abstracts, N.Y. Times, Jan. 17, 1969.

[3] See Sheldon Goldman, Picking Federal Judges 324 (Yale University Press 1997).

[4] See id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] See id.

[10] See id.

[11] See J.Y. Smith, Sherman Unger, 56, Nominee to U.S. Court, Dies, Wash. Post, Dec. 4, 1983.

[12] See Sheldon Goldman, Picking Federal Judges 324 (Yale University Press 1997).

[13] J.Y. Smith, Sherman Unger, 56, Nominee to U.S. Court, Dies, Wash. Post, Dec. 4, 1983 (quoting Sherman Unger).

[14] See id.

[15] See id.

[16] See Sheldon Goldman, Picking Federal Judges 324 (Yale University Press 1997).

[17] Id.

[18] See Al Kamen, Inside: the Federal Judiciary: More and More Judges, Wash. Post, Oct. 25, 1985 (suggesting that Unger was about to be rejected before his death).

Unconfirmed: The Neverending Vacancy

When Judge Malcolm Howard took senior status on December 31, 2005, the 66-year-old Reagan appointee likely expected a successor to be appointed in a matter of months.  Today, over twelve years later, Howard’s seat on the U.S. District Court for the Eastern District of North Carolina is still vacant, the longest district court vacancy in U.S. history.[1]  The story of this vacancy spans three Administrations and three failed nominations, as well as involving the ugly specter of racism and politics in the “new south.”

Let us start off with two facts: first, the Eastern District of North Carolina, which covers 44 counties from Raleigh into the North Carolina coastline, has one of the highest percentage of black residents in the nation, with over 25% of the population being African American;[2] second, the Eastern District of North Carolina has never had a single African American judge.[3]  North Carolina’s relative paucity of African American federal judges relates partly back to Sen. Jesse Helms, the notoriously conservative senior senator from North Carolina.  Over his thirty year tenure, Helms oversaw the nominations of 15 district court judges and three appellate judges from North Carolina, only two of whom were black.  As such, by the time that Howard moved to senior status, many felt that the Eastern District of North Carolina was overdue for an African American judge.  However, President George W. Bush’s nominated Thomas Alvin Farr, a 52-year-old white private practice attorney from Raleigh.

Farr’s nomination came before a Democratic-controlled Senate on January 9, 2007, alongside the nominations of Thomas Schroeder, William Osteen Jr., and Martin Reidinger to fill three other North Carolina vacancies.[4]  The Senate confirmed Osteen and Reidinger on September 10, 2007, and confirmed Schroeder on December 14, 2007.  However, despite having the strong support of North Carolina senators Elizabeth Dole and Richard Burr, Farr received neither a hearing nor a vote.  In the 2008 elections, two simultaneous actions killed Farr’s hope of confirmation: first, Illinois Senator Barack Obama, a Democrat, was elected to be the new President of the United States; second, Dole was defeated for re-election by Democrat Kay Hagan.

Entering office with a new Democratic president, Hagan recommended three candidates to President Obama for the Howard seat: Superior Court Judges Allen Cobb and Quentin Sumner, and Assistant U.S. Attorney Jennifer May-Parker.[5]  Notably, two of the three candidates, Sumner and May-Parker, were African American.  On July 21, Burr wrote to Obama endorsing the candidacies of Cobb and May-Parker for the seat.[6]

However, despite the joint recommendations, the White House failed to put a nomination forward.  As his first term came to an end, Obama managed to place two North Carolina judges on the U.S. Court of Appeals for the Fourth Circuit, as well as two more on the District Courts.  And yet, the Administration failed to nominate anyone to the Eastern District.

Some speculated that the Administration had failed to nominate a candidate because it was looking for an African American nominee.[7]  Rep. G.K. Butterfield urged the White House to nominate an African American to the seat, noting that 26.5% of the residents under the Eastern District were black.[8]  For her part, Hagan refused to recommend any additional candidates to the White House.[9]

On June 20, 2013, four and a half years after he came to office, Obama finally submitted a nomination to the Howard seat, which had, by now, been vacant for seven and a half years.  The nominee was Jennifer May-Parker, the African American federal prosecutor recommended by Hagan and Burr in July 2009.[10]  However, despite his support for May-Parker in 2009, Burr refused to return a blue slip on the nomination.[11]  Burr declined to offer a reason for his blockade of May-Parker, but his intransigence prevented a hearing or a vote on May-Parker.  Furthermore, in the 2014 elections, Hagan lost re-election to Republican Thom Tillis.  Bowing to the political realities, the Obama Administration chose not to renominate Jennifer May-Parker in the Republican-controlled 114th Congress.

After withdrawing May-Parker’s nomination in early 2015, Obama did not submit another nomination to the Howard seat until April 2016, when he nominated Patricia Timmons-Goodson, a member of the U.S. Commission on Civil Rights and a former North Carolina Supreme Court Justice.[12]  The nomination drew a sharp response from Burr who argued that Obama had broken an agreement that would have filled the vacancy, calling the nomination an “election season stunt.”[13]  Despite criticism within his home-state,[14] Burr stuck to his stance, blocking Timmons-Goodson for the rest of the Obama administration.  Notably, in a private meeting, Burr took credit for the “longest vacancy,” touting it as an example of his frustration of the Obama Administration’s goals.[15]  Overall, Burr weathered the criticism and won re-election.  Furthermore, the election of President Donald Trump in 2016 put an end to the Timmons-Goodson nomination.

With a new Republican president and two Republican senators, the stars seemed aligned for the swift confirmation of a nominee to the Howard seat.  Sure enough, on July 13, 2017, Trump renominated Farr, over ten years after his initial nomination by Bush.  However, since then, Farr’s second nomination has bogged down over criticism of his work defending voting restrictions in North Carolina, and his alleged role in illegal voter suppression while working on the Helms campaign in 1990.[16]  As a result, Farr’s nomination has twice passed through the Judiciary Committee on narrow party-line votes, and has still not been called up by Senate Majority Leader Mitch McConnell.

Furthermore, Farr’s confirmation on the floor isn’t assured.  With Sen. John McCain frequently absent for medical reasons, McConnell has only a narrow 50-49 margin on controversial votes.  With Democrats united against Farr, McConnell cannot afford any defections if he intends to confirm Farr.  Thus, with the NAACP and other groups lobbying moderate Republicans heavily,[17] the outcome is still uncertain.  And as such, the neverending vacancy goes on, still unfilled.

[1] See Will Doran, Sen. Richard Burr Claims Responsibility for Longest Judicial Vacancy in U.S. History, Politifact North Carolina, Nov. 3, 2016, http://www.politifact.com/north-carolina/statements/2016/nov/03/richard-burr/sen-richard-burr-claims-responsibility-longest-jud/.  

[2] See Ari Berman, He Defended North Carolina’s Voter Suppression Law. Now He’s Set to Become a Federal Judge There, Mother Jones, Oct. 18, 2017, https://www.motherjones.com/politics/2017/10/he-defended-north-carolinas-voter-suppression-law-now-hes-set-to-become-a-federal-judge-there/.

[3] See id.

[4] Archive of Federal Judicial Vacancies, http://www.uscourts.gov/judges-judgeships/judicial-vacancies/archive-judicial-vacancies/2007/02/vacancies/pdf (last visited March 11, 2018).

[5] WRAL, Hagan Looks to Split U.S. Attorney Job, Capitol Broadcasting Company, July 10, 2009, http://www.wral.com/news/local/politics/story/5547659/.

[6] Letter from Richard Burr, North Carolina Senior Senator, to Barack Obama, The President of the United States (July 21, 2009) (on file at http://big.assets.huffingtonpost.com/Burrletter.pdf).  

[7] Patrick Gannon, Race, Politics Keep Judge’s Seat Empty for 7 Years, Star News, Jan. 12, 2013, http://www.starnewsonline.com/news/20130112/race-poltics-keep-judges-seat-empty-for-7-years.

[8] See id.

[9] See id.

[10] Press Release, Office of President Barack Obama, President Obama Announces Intent to Nominate Three to Serve on the United States District Court (June 20, 2013) (on file at https://obamawhitehouse.archives.gov/the-press-office).

[11] Jennifer Bendery and Sam Stein, Richard Burr Blocks Judicial Nominee After Recommending Her to Obama, Huff. Post, Jan. 8, 2014, https://www.huffingtonpost.com/2014/01/08/richard-burr-judicial-nominee_n_4563083.html.  

[12] Press Release, Office of President Barack Obama, President Obama Nominates Eight to Serve on the United States District Courts (April 26, 2016) (on file at https://obamawhitehouse.archives.gov/the-press-office).

[13] Press Release, Office of Sen. Richard Burr, Sen. Burr’s Statement on the White House’s Nomination for the Eastern District Judge (April 29, 2016) (on file at https://www.burr.senate.gov/press/releases/).  

[14] CBC Editorial, Burr Needs to End Political Games, Back Timmons-Goodson Judicial Appointment, WRAL.com, Oct. 5, 2016, http://www.wral.com/editorial-burr-needs-to-end-petty-political-games-back-timmons-goodson-judicial-appointment/16083659/.  

[15] See Will Doran, Sen. Richard Burr Claims Responsibility for Longest Judicial Vacancy in U.S. History, Politifact North Carolina, Nov. 3, 2016, http://www.politifact.com/north-carolina/statements/2016/nov/03/richard-burr/sen-richard-burr-claims-responsibility-longest-jud/.  

[16] See Alexander Nazaryan, President Trump is Rewarding a Lawyer Who Has Fought to Block the Black Vote with a Plum Federal Judgeship, Newsweek, Sept. 21, 2017, http://www.newsweek.com/trump-north-carolina-farr-voter-suppression-668649.

[17] See Anne Blythe, Trump’s Pick on Bench is ‘Tantamount to Hitler Wreacking Havoc’ Among Jews, NAACP Leader Says, News & Observer, Mar. 5, 2018, http://www.newsobserver.com/news/local/article203587414.html.

Unconfirmed: Claude Allen

Official Portrait Claude Allen

Even compared to other failed judicial nominees, Claude Allen’s story is uncommonly tragic. His nomination to the U.S. Court of Appeals for the Fourth Circuit was doomed by several familiar factors—a history of offensive statements, a record of extreme social conservatism, and a lack of traditional legal experience— and an unusual one: He was caught in the middle of a spat between Maryland Democrats and Virginia Republicans over the nominee’s state of origin. His nomination stalled for two years, showed no signs of movement, and was withdrawn at his request.

And then the shoplifting charges hit.

Ultimately, Claude Allen’s unsuccessful judicial nomination will be a mere footnote in his life story; overtaken by other events, including his arrest and conviction on multiple charges of shoplifting, followed by a horrific family tragedy involving his son. And for lawyers who sometimes lose perspective, it is a bracing reminder that there is more to life than the law.

The Nomination

In 2003, President Bush nominated Allen to Fourth Circuit, at the time widely regarded as the most conservative federal appeals court in the country. (Things have changed.) Allen had limited legal experience but a sterling resume. A graduate of Duke Law School and a protégé of Clarence Thomas, Allen served as Secretary of Health and Human Resources under Virginia Governor James Gilmore, then joined the George W. Bush Administration in 2001 as Deputy Secretary of the Department of Health and Human Services.

Yet although the Republicans controlled the Senate, Allen’s nomination clung to life support from the start, for several reasons—some unique to him, others not; some his doing, others not. In particular, (1) he had made anti-LGBT and anti-woman comments earlier in his career, and had defended anti-civil-rights positions held by his then-boss, Senator Jesse Helms; (2) his record in government revealed extreme social conservatism, punctuated by controversial, high-profile decisions and bipartisan questions about his temperament; (3) he had little traditional legal or judicial experience, which reinforced concerns that President Bush nominated him to advance a socially conservative agenda; and (4) he was caught in the middle of a feud battle between Democratic Senators from Maryland (home of the judge whom Allen would be replacing) and Republican Senators from Virginia (home of Allen).

Perhaps Allen could have surmounted one or another of these obstacles. But the combination was too much.

First, Allen had made anti-LGBT and anti-woman comments while working as press secretary for Senator Jesse Helms in the early 1980s. In 1984, Allen attacked Helms’s opponent, North Carolina Governor James Hunt, for having ties to “the queers” and a “radical feminist connection.” The demeaning comment did not sound any better in context: Allen had said, “We could expound on and undertake a campaign against Jim Hunt’s connections with the homosexuals, the labor union connection, the radical feminist connection, the socialist connection . . . . We could go back and do the same thing with the queers.”

Allen’s explanation at his confirmation hearing did not help. He claimed to have meant only that Hunt’s campaign affiliated with “odd” people. Spectators were unpersuaded; in the words of NPR, “Claude Allen embarrassed the GOP with his slurs against gays and feminists and two decades later during the Senate Confirmation Hearing he didn’t back away from them.”

Allen’s ties to Jesse Helms presented a broader problem for the African-American judicial nominee. Senators questioned Allen about Helms’s 1983 filibuster of the proposed federal holiday honoring Martin Luther King Jr. In response, Allen described Senator Helms’ move as “deeply conflicting” and described the filibuster as “the most difficult day” of his life.

Although the NAACP did not formally oppose Allen’s nomination, other civil-rights groups did. The Leadership Conference for Civil Rights, for example, described itself as “especially troubled by Claude Allen’s record on civil rights”—pointing, among other things, to Allen’s defense of Helms’s voting record.

Second, these civil-rights concerns were exacerbated by Allen’s record in government, both in Virginia and in the Bush administration.

When Allen served as Deputy Secretary of HHS, for instance, the agency defined a fetus as a child eligible for SCHIP funds. Needless to say, this change delighted pro-life groups and horrified pro-choice groups.

But it was Allen’s record in Virginia that proved most controversial. For instance, while leading Virginia’s Department of Health and Human Resources, Allen supported abstinence-only AIDS prevention and blocked a rape victim from receiving Medicaid funds to have an abortion after she was impregnated by her rapist.

Perhaps most notably, Allen played a high-profile role in Governor Gilmore’s effort to keep alive Hugh Finn, a comatose man with severe brain injuries, despite objections from his wife. After Finn had been in a coma for 3 1/2 years following a car accident, his wife sought to disconnect his feeding tube, as permitted by state law. In response, his parents protested the decision, ultimately involving a state legislator, the state attorney general, and national anti-abortion groups.

Then Allen got involved. He sent health department investigators to examine Finn—without his wife’s permission—and claimed that he had been told by a state nurse that Finn might not actually be persistently vegetative; he then advised Governor Gilmore, who ultimately brought suit against Finn’s wife and claimed that she wanted to practice euthanasia. (Unsurprisingly, the Virginia Supreme Court rejected this argument and allowed Finn’s wife to proceed.) After Allen was nominated, Finn’s wife did not hold back: “Any judge has to be able to set aside their own personal and moral conviction to protect the public interest. His actions in my husband’s case show that he’s incapable of doing that,” she said.

Substantive views aside, members of both parties in Virginia complained that Allen was “at best an unresponsive manager and at worst an executive who is trying to dismantle longstanding programs for women and children.” His tenure proved so rocky that a senior Republican State Senator sponsored legislation “designed to force Allen to do a better job communicating to a variety of caregivers in the state.”

These two strands—Allen’s views and his temperament—coalesced in critiques of Allen’s nomination. Senator Leahy, for example, warned that Allen “has shown himself to be extreme with a reputation for recalcitrance and an unwillingness to work with others of differing views.” Likewise, the National Abortion Federation (NAF) argued that “Allen’s record as Secretary of Virginia Health and Human Resources reveals that he uses his political beliefs to justify his professional decisions” and that “[t]here is no reason to conclude that as a judge he would do otherwise.”

Third, Allen’s incendiary record, views, and comments were coupled with a lack of traditional legal or judicial experience. Allen had practiced law for fewer than seven years—more than five fewer than the twelve years recommended by the American Bar Association. The ABA gave Allen a rating of only “qualified”—not “well qualified”—and some members of the panel deemed him “not qualified.”

Because Allen lacked much traditional legal experience, his conservative views and record got yet more attention, and he could not attribute those views to his clients. And given his lack of experience as a lawyer qua lawyer, Allen’s social conservatism appeared to be the reason that he was nominated; NAF, along with others, argued that given “his lack of judicial experience as well as precious little experience as a practicing attorney, his strident conservative beliefs are the main qualifier for his nomination.”

Fourth, and perhaps most importantly, Allen’s nomination sparked a nasty Senatorial spat over—his place of residence. Allen lived in Virginia, home to two Republican Senators; the vacancy had traditionally been filled by judges from Maryland, home to two Democratic Senators. The Maryland Senators had previously objected to Bush’s first choice, and by nominating Allen, Bush appeared to bypass the Democratic Senators from Maryland in favor of the two Republican Senators from Virginia. The ensuing “cross-Potomac quarrel” bloodied an already controversial pick.

This dispute transcended Allen personally. As the New York Times reported, “his fate seemed decided even before he uttered his first word.” At his hearing, the witness table featured not only the two Senators from Virginia, who came to praise Allen’s nomination, but also the two Senators from Maryland, who came to bury it. Maryland’s normally mild-mannered Senator, Paul Sarbanes, became “so animated in his remarks that Senate staff members said they had never seen him so emotional”: He accused Bush of a “gross departure from practice” and vowed to oppose the nomination “with all the strength I can muster.”

All this proved too much for Allen to overcome. Democrats on the Senate Judiciary Committee blocked a committee vote; the two Maryland Democrats vowed to filibuster his nomination even if it made it to the floor; and their position proved sympathetic even to the Republican Committee Chairman, Senator Orrin Hatch. By 2005, when Bush renominated twenty prospective judges who had been halted in the previous session, Allen declined the opportunity. His ailing nomination was finally dead.

Things Go Downhill from There

For most failed judicial nominees, the story would end there. Not so for Claude Allen.

In January 2005, Bush nominated Allen to be the White House Domestic Policy Advisor—itself a move that was deemed “likely to irritate Bush’s critics.” But in February 2006, Allen unexpectedly resigned, claiming that he wanted to spend more time with his family.

Soon his actual reasoning became clear. In March 2006, Allen was arrested and charged with felony theft after committing a series of “refund fraud” shoplifting offenses. Police said that he was spotted taking merchandise—less than 75-dollars-worth!—from a Gaithersburg, MD department store on January 2; he was stopped by a store employee and issued a misdemeanor theft citation. The details of Allen’s low-tech scheme: “[S]tore employees saw Mr. Allen fill a shopping bag with merchandise and put additional items into a shopping cart. He then sought, and received a refund for some of the items and left the store without paying for others.” That citation led police to investigate further, and they determined that in 2005, Allen had received over $5,000 in refunds from department stores in at least 25 fraudulent transactions. The eclectic bill of goods included “a Bose home theater system, stereo equipment, clothes, a photo printer and items worth as little as $2.50.”

(The arrest also gave rise to an ironic conspiracy theory about an evil twin: Allen’s identical twin, Floyd Allen, had a more checkered history; their stepmother admitted that upon learning of the crimes, “I actually started to call Floyd to ask him what happened, but then I saw it wasn’t him.”)

After initially denying the allegations, in August 2006 Allen pled guilty to shoplifting and wept in court while apologizing. Allen received a sentence of “probation before judgment,” allowing him to keep his criminal record clean. His licenses to practice law in Virginia and Pennsylvania were each suspended for 90 days, however, and the District of Columbia bar counsel sought to have him disbarred; the D.C. Court of Appeals rejected that request and ordered Allen suspended for a year, agreeing that Allen’s conduct arose from “extreme stress” and noting darkly that “[t]he legal profession is a stressful occupation that can, and often does, take a toll on the mental health of its practitioners.”

Things got worse yet. In 2013, Allen’s son, Claude Allen III, was arrested in Gaithersburg and charged with a gruesome hatchet murder. The victim’s body was found in the woods behind his Allen’s home. Allen III later pled guilty to the murder and was committed to a psychiatric hospital.

*        *        *

Claude Allen proved to be one of the more memorable Bush judicial nominees, but for reasons that were less than optimal. His fast rise and ideological purity could not secure him a spot on the bench, his nomination and then his career got away from him, and then he suffered a spectacular personal fall. His ultimate legacy may be to remind us that, for better or worse, lawyers and judges are people too.

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).