Carter's Quiet Revolution

By Mark Joseph Stern, Slate

15 July 19

President Jimmy Carter’s diversification of the judiciary is one of the most important and least acknowledged achievements in presidential history. And it’s in danger.

n December 1976, one month before beginning his single term as president, Jimmy Carter hosted some of the most preeminent civil rights figures and black leaders in the country at the stately governor’s mansion in Atlanta. Rep. Andrew Young, the Atlanta congressman and former executive director of the Southern Christian Leadership Conference, was there to accept a position as ambassador to the United Nations. Judge Frank M. Johnson, a white federal judge whose landmark rulings helped end public segregation throughout the South, met with Carter to discuss a top role in the Department of Justice. Coretta Scott King, the widow of Martin Luther King Jr., also paid the president-elect a visit.

Then there was Democratic Sen. James Eastland of Mississippi. Eastland, whose name has returned to the news in recent weeks following controversial comments by Joe Biden, had little in common with the civil rights leaders who visited Carter that week. Unapologetic about his white supremacist views, Eastland had once called school integration “a program designed to mongrelize the Anglo-Saxon race.” Carter, for his part, had been hoping to establish a level of diversity in his administration never before achieved by an American president. He also intended to diversify the federal judiciary. But Eastland was the powerful chairman of the Senate Judiciary Committee, and by the traditions of that time, individual senators—backed by Eastland’s gavel—directly controlled who was nominated to the federal bench. Carter hadn’t invited Eastland to Atlanta for a job: He was asking him to relinquish this enormous power, and to do it for the sake of integrating the nation’s judgeships.

Eastland proved surprisingly receptive. (It’s possible the senator may not have recognized how serious Carter’s commitment to diversity was; in a bit of political maneuvering, Carter had campaigned against school busing but would enforce it while in office, creating the Department of Education in 1979 in part to focus on civil rights.) Eastland said he was proud to see a southerner in the White House and intended to do whatever he could to make Carter’s presidency a success. If that included allowing the new president to put some nontraditional judges on the bench, so be it.

The linchpin of Carter’s plan to revolutionize and diversify the judiciary depended on the creation of a brand-new federal commission to pick appeals court judges, wresting the power to make judicial nominations away from individual senators. Eastland told Carter he would endorse the commission and its power to select nominees at the appeals level. His one caveat: He couldn’t force his fellow senators to surrender their authority to select district court judges, a jealously guarded patronage system.

But Eastland kept his promise and then some: Over the next four years, a nominating commission was allowed to propose the most diverse array of appeals court judges up to that point in American history. Their nominees were frequently selected by the president, approved by the Judiciary Committee, and consented to by the Senate. What’s more, many senators further ended up deferring to a commission on district court judges, too: Carter would send Democrats handwritten pleas, while Republicans knew that without the White House they would not be the ones selecting nominees anyway.

The outcome transformed the judiciary for decades—and set a new precedent for the elevation of diverse nominees. When Carter took office, just eight women had ever been appointed to one of the 500 federal judgeships in the country. (For the purposes of this article, I’m referring to the district courts, appellate courts, and the Supreme Court.) Carter appointed 40 women, including eight women of color. Similarly, before Carter, just 31 people of color had been confirmed to federal courts, often over Eastland’s strenuous disapproval. The peanut farmer from Plains appointed 57 minorities to the judiciary. (He also had more robes to fill: A 1978 bill expanded the federal judiciary by 33 percent, or 152 seats.)

Today, Carter’s presidency is often deemed a failure. But if, as has become axiomatic, one of a president’s most important duties is in filling the judiciary, then any fair accounting of Carter’s legacy must include how profoundly he transformed that branch of government. Jimmy Carter’s imprint is all over the law today, over four decades later. His appointees pushed the law in a progressive direction, helping to implement his civil rights objectives by better enforcing constitutional guarantees of equality. Carter was the first president to alter the face of the federal judiciary to look much more like the country it served. His reshaping of who gets to interpret the Constitution—and how—is one of the greatest, longest-lasting, and most unheralded achievements in presidential history.

Even though no president who followed Carter deployed nominating commissions, each put more women and minorities on the bench than Carter’s predecessors. Judicial diversity became a priority particularly for Carter’s Democratic successors: Presidents Bill Clinton and Barack Obama both surpassed his record, and Clinton’s two Supreme Court appointees, Justices Ruth Bader Ginsburg and Stephen Breyer, were initially elevated to the judiciary by Carter. “After Carter, things never went back to old ways,” Ginsburg said at a 2015 public talk. “The first time I ever thought of being a judge was when Jimmy Carter announced to the world that he wanted to change the complexion of the U.S. judiciary, which he did.”

Now, decades later, this generation of diverse judges is ending its service, and it is being replaced by a markedly non-diverse cohort of judges. As this changing of the guard occurs before us, we must understand what is being lost—and what was accomplished.

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It’s hard to overstate just how uniform the federal judiciary was as Carter took office. Less than 2 percent of Gerald Ford’s nominees had been women and less than 10 percent nonwhite. Before that, less than 1 percent of Richard Nixon’s nominees had been women and 4 percent nonwhite. For Carter, ensuring that 15 percent of his nominees were women and 22 percent nonwhite was not just a dramatic change—he had to overcome institutional obstacles, racism, and sexism to make it happen.

For one, the pool of lawyers from which a new judge could be recommended was nowhere near the demographic makeup of the country at large. In 1980, the year Ronald Reagan would oust Carter from the presidency, there were about 44,185 female lawyers, making up just 8.1 percent of the profession. There were a mere 27,110 minority lawyers that year, or 5 percent of the profession. Ingrained bigotries, both unspoken and explicit, help account for these meager numbers. As recently as the early 1970s, for instance, courts were still allowing law firms to explicitly warn job applicants that they did not hire women.

But how did Carter’s commission make such a difference? The answer, straightforward enough that it is easily underestimated, is that its intention was to change the definition of who counted as qualified. The U.S. Circuit Judge Nominating Commission established by Carter’s executive order was divided into separate nominating panels for each court of appeals. The panels submitted five candidates for each judgeship, from which Carter would select one nominee. He requested that these candidates be chosen on merit and the “perceived need” of the court. This oblique language was meant to signal a desire for diversity. Carter issued another executive order asking senators to set up similar commissions to choose district court nominees from their home states using the same guidelines. (By the time he left office, 30 states were using these commissions to choose district court nominees that Carter would then push for.)

But not every panel fully grasped what Carter was going for, perhaps in part because he was tight-lipped about his aims, at least in public. (Affirmative action was relatively new and controversial, and he may have wished to avoid backlash.) Three of Carter’s 12 court of appeals nominees in 1977 and 1978 were minorities, but zero were women, a reflection of the panels’ slow progress in identifying nontraditional candidates. So Carter issued a second executive order in May 1978 making his goal of affirmative action explicit by urging the commission to “make special efforts to seek out and identify well qualified women and members of minority groups as potential nominees.” Five months later, the Justice Department reminded the commission’s members to “note the President’s desire to consider qualified minority and female lawyers for appointment as Circuit Judges.” There was now no mistaking Carter’s mission.

Still, even after the panels began putting forth diverse nominees, the Carter administration ran into another roadblock: the American Bar Association’s Standing Committee. In its evaluations, which the Senate used in the confirmation process, candidates were appraised by the years they had practiced and the (subjective) prestige of their work, a standard that favored prosecutors and lawyers at large firms over academics, defense attorneys, and legal aid workers. This standard further disadvantaged the many women and minorities who had been locked out of the law until recently. Women and Hispanics were especially harmed by the ABA’s preference for prosecutors.

Following complaints from feminist advocates, the White House counsel’s office asked the ABA Standing Committee to place more value on less traditional legal backgrounds. In 1980, Brooksley Landau became the first female chairman of the committee, enacting reforms that placed less emphasis on length of service in recognition of the fact that “opportunities for advancement in the profession [for women and minorities] may have been limited” up until “recent years.” Landau would write the recommendation for Sandra Day O’Connor’s pathbreaking Supreme Court nomination by Reagan in 1981.

As detailed in American University law professor Mary L. Clark’s thorough 2011 study of the nominating commission, the selection of women and minorities increased steadily for the remainder of Carter’s presidency. Regional women’s and civil rights’ groups, like the National Women’s Political Caucus’ Legal Support Caucus, provided substantial input to the panels, further expanding the ranks of those who counted as “gatekeepers.”

By the time Carter left office, there were about 80 minorities in the federal judiciary and 46 women. (A precise count for minorities is difficult to pinpoint due to a few ambiguities in self-identification.) As Ginsburg later recalled, Carter saw his initiative as an effort to help historically marginalized groups gain representation on the bench because he wanted judges “to be drawn from all of the people, not just some of them.” That stated mission did not include anything about how Carter intended for the law to change—his commission was instructed to avoid political considerations and selected many nominees with no outward commitment to progressive jurisprudence. But it should not come as a shock that Carter’s judges tended to move the law leftward long after he left office. In the American judiciary, with limited exceptions, diversity and progressivism went hand in hand.

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Because Carter did not have the opportunity to nominate anyone to the Supreme Court during his lone term, the legal impact of his judicial appointments has been less easy to recognize. Yet several of Carter’s diverse appointees authored decisions that encouraged or anticipated some of the Supreme Court’s most significant leftward moves, bolstering constitutional protections for marginalized groups. Take the problem of peremptory challenges, the ability of prosecutors to exclude black jurors without providing a reason. In 1880, the Supreme Court had declared that states may not formally bar black citizens from jury duty, but prosecutors evaded this rule by using supposedly neutral peremptory challenges to establish all-white juries. In 1965’s Swain v. Alabama, SCOTUS tried to develop a rule that would limit the use of race-based peremptory challenges; its efforts failed because its standard—forcing defendants to prove a pattern of “systematic and purposeful” prosecutorial bias in jury selection “over an extended period of time”—was virtually impossible to meet.

It was Judge Amalya Lyle Kearse, a black Wall Street attorney whom Carter had appointed to the 2nd U.S. Circuit Court of Appeals, who provided the solution with her 1984 decision in McCray v. Abrams. The “basic premise” of Swain, Kearse wrote, was that prosecutors could strike black jurors because they assumed that blacks would indiscriminately vote to acquit a black defendant. But this “fallacious” stereotype served “only to limit artificially the opportunity of blacks for participation in our system of justice, and to perpetuate an invidious proposition of racial inferiority.” Moreover, proving prosecutorial bias over an “extended period” had turned out to be “Mission Impossible,” a “standard of proof” that “almost no … defendant” can meet. Kearse then offered a much more stringent standard limiting the use of race-based peremptory challenges, requiring proof of discrimination simply in the case at hand rather than over some lengthy period, as Swain had demanded.

Sixteen months later, the Supreme Court overruled Swain and adopted a standard similar to Kearse’s in Batson v. Kentucky, citing her opinion. It also cited another Carter appointee, Judge Theodore McMillian, who in a searing 1983 opinion that reflected his professorial background decried Swain’s “remarkable lack of success” at stamping out the “systematic exclusion” of blacks from the jury box. The fight against racist peremptory challenges has continued with mixed success ever since. In one of the most prominent cases of this past Supreme Court term, Justice Brett Kavanaugh wrote for a 7–2 majority reversing a capital conviction in which a prosecutor had abused peremptory challenges over the course of six trials for the same crime; in doing so, the court was upholding the principles McMillian and Kearse had helped to make into constitutional law.

The road to Batson illustrates how lower courts and SCOTUS sometimes engage in a dialogue, even collaboration, to identify the contours of the law. That process also played out over the next few decades in a different arena, as Carter’s judges helped the legal system define the contours and legality of affirmative action. By the late 1970s, a judicial consensus had been developing that affirmative action was unlawful. The Supreme Court’s Bakke and Weber rulings had limited the practice, and it seemed to be dangling by a legal thread. Then, in 1984, the 9th U.S. Circuit Court of Appeals upheld an affirmative action program that favored female applicants at the Santa Clara County Transportation Agency, even if they had slightly fewer traditional qualifications than their male counterparts. Judge Betty Binns Fletcher, who had been a pioneering law firm partner when Carter placed her on the bench, wrote the majority opinion holding that the initiative marked “a lawful effort” to “eliminate a manifest male-female imbalance.” Three years later, SCOTUS affirmed Fletcher’s decision, forestalling a crush of lawsuits attacking affirmative action by upholding employers’ ability to take race and sex into account.

Judges can also influence the law in dissent, persuading (or shaming) their colleagues into changing their minds. In 1994’s Aiken v. City of Memphis, for example, the 6th U.S. Circuit Court of Appeals tussled over the legality of a Memphis program that encouraged the promotion of blacks in city government. The majority subjected the city’s affirmative action plan to strict scrutiny—a tough legal standard to meet, since it requires proof that a plan is “narrowly tailored” enough to minimize racial considerations.

Two black Carter nominees, Judges Nathaniel R. Jones and Damon Keith, authored vehement dissents. Jones, who had led desegregation efforts in the North as an NAACP attorney, lambasted the majority for halting “Memphis’s laudable attempt at racial healing and eradication of the present day effects of racial discrimination.” The majority’s position, he wrote, was “clearly antithetical to the Fourteenth Amendment.”

Keith’s separate dissent accused his colleagues of ignoring America’s “tradition of slavery, segregation, bigotry, and injustice,” its “inferior treatment of an entire race of people based solely on the color of their skin.” Keith concluded:

[E]quality is far from won. In fact, today we are faced with a new oxymoron—the notion of reverse racial discrimination. This outrageous notion is nothing but inflammatory fodder designed to discourage taking race into account even where such accounting promotes fundamental fairness, equality, and justice.

Keith was effectively accusing his white colleagues of racism. He must have been displeased, then, when Supreme Court agreed with the 6th Circuit a year later. But the squabble over affirmative action wasn’t over. Several years later, in 2002, the 6th Circuit—infused with new Clinton appointees—upheld a race-conscious admissions program at the University of Michigan Law School, ruling that it satisfied strict scrutiny using a much less stringent version of the test. This time, Judge Boyce F. Martin Jr., a white Carter nominee, wrote the majority opinion. And the next year, SCOTUS affirmed Martin’s decision, applying a more relaxed version of strict scrutiny in an opinion that praised the value of diversity. Martin, Jones, and Keith had all laid the groundwork for that ruling, which was affirmed once again in 2016.

While no judicial cohort can be boiled down to a single perspective, Carter’s nominees were, as a whole, also strongly supportive of individual liberties and wrote about injustice with unusual prescience. Two of his female nominees, Fletcher and Judge Patricia Wald, wrote that excluding gays from the military violated the Constitution; their reasoning foreshadowed the Supreme Court’s eventual invalidation of same-sex marriage bans. Another of his female nominees, Judge Cornelia Groefsema Kennedy, authored a 1997 decision striking down Ohio’s second-trimester abortion ban as unconstitutionally vague; three years later, SCOTUS invalidated a comparable Nebraska ban using similar reasoning.

The premise that minority and female judges are more likely to advance progressive goals is difficult to quantify. Indeed, the very idea that a judge’s identity might affect her jurisprudence became a flashpoint during the 2009 Supreme Court confirmation of Sonia Sotomayor—because of remarks she made in 2001 expressing hope “that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

Sotomayor has continued her exploration of identity’s impact on jurisprudence, though. In one of her most famous dissents, from a 2016 decision that expanded law enforcement’s ability to conduct investigatory stops without suspicion of a crime, she pointedly condemned the majority for its ignorance of racism in policing. “[D]rawing on my professional experiences,” Sotomayor wrote, “I would [say] that unlawful ‘stops’ have severe consequences,” particularly for minorities.

“We must not pretend that the countless people who are routinely targeted by police are ‘isolated,’ ” Sotomayor concluded. “They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere.”

As Sotomayor’s memorable dissent demonstrated, the life experiences of minority judges inform their views on civil liberties. Judge Anna Blackburne-Rigsby of the District of Columbia Court of Appeals echoed this point when she declared in 2016: “Diversity of the bench means that there is a collaboration of minds with different voices, different perspectives, different experiences working together to solve problems.” Some judges may not even recognize those “problems” until colleagues point them out.

The data bears out the theory that nontraditional judges vote differently. Black judges, even those appointed by Republican presidents, are more likely to enforce the Voting Rights Act against voter suppression laws. They’re also more likely to rule in favor of LGBTQ plaintiffs and victims of sex discrimination. Minority and female judges are also more favorable to black individuals’ accusations of police misconduct, and less likely to impose harsh sentences on black defendants. This progressive judging has played an important role in the establishment of equal rights for all people, no matter their identity or background.

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Damon Keith died in April at the age of 96 as a senior judge, having never retired.
He left behind a vast body of progressive jurisprudence and a diverse coterie of devoted clerks who themselves went on to influential positions, such as Jennifer Granholm, the former governor of Michigan; Judge Eric Clay, later appointed to the 6th Circuit; and Lani Guinier, the first woman of color to receive tenure at Harvard Law School.

With Keith’s death, just 13 Carter nominees remain on the U.S. Courts of Appeals. Ginsburg and Breyer are 86 and 80, respectively. Carter’s nominating commission was immediately undone by President Ronald Reagan. In Reagan’s two terms, more than 90 percent of his nominees were white, and more than 90 percent were male. Donald Trump, meanwhile, is filling the courts at a rapid clip, unrestrained by independent panels or senatorial filibuster, nominating fewer minorities than the last Republican president did nearly two decades ago. For contrast, Barack Obama, drawing from a vastly more diverse bar than Carter was able to, nominated women to 42 percent of the seats he filled and minorities to 36 percent. Just 22 percent of Trump’s confirmed nominees are women, and 12 percent are nonwhite.

For his part, Trump has been advised chiefly by Leonard Leo, a white man who has primarily recommended other white male members of his Federalist Society, a network of conservative attorneys and law students. Leo wants to return the courts to a pre–New Deal era. He opposes expanded rights for women, LGBTQ people, and racial minorities, and especially loathes Roe v. Wade; other targets include progressive economic legislation like the Affordable Care Act.

And while the Senate ended up rejecting one of Trump’s more extreme nominees, Thomas Farr, who played an active role in suppressing minority votes in North Carolina, it confirmed Chad Readler, who defended discriminatory policies as part of Trump’s Department of Justice, and who earlier as a law partner defended Ohio’s myriad disenfranchisement efforts—including strict voter ID requirements, cuts to early voting, and purges of the voter rolls.

There’s another problem with Trump’s bias toward white men: As argued by Rutgers law professor Stacy Hawkins, it may undermine judicial legitimacy among the public. Hawkins notes that legal scholars and political scientists have long found citizens “of all races and ethnicities are more likely to believe that our justice system is fair and equitable to all when judicial decisionmakers reflect the diversity of the citizenry.” Americans, further, seem skeptical that equal justice can be rendered by a judiciary composed overwhelmingly of white men. Trump’s “whitewashing” of the federal judiciary, Hawkins wrote, may “compromise public trust in the judiciary and reduce judicial accountability to an increasingly diverse citizenry.”

Judge Carlton Reeves, an Obama appointee to a district court in Mississippi, has voiced his own worries that the public will soon have good reason to lose faith in its courts. In a speech this past April, Reeves condemned the homogeneity of Trump’s nominees across the judiciary, demanding a federal bench “as diverse as ‘We the People.’ ”

“When our Supreme Court captures such a narrow set of perspectives,” Reeves asked, “what truths will it overlook?” What “prejudices, misperceptions, and stereotypes will be left unchallenged, and forged into precedent?”

Toward the end of his speech, Reeves declared that “equal protection of the law is not a political position. It is enshrined in our Constitution.” Yet in hearing after hearing, Trump nominees have refused to say whether Brown v. Board of Education was correctly decided.

When Ohio’s voter suppression laws came before the 6th Circuit shortly before the 2016 election, the court upheld them 2–1. The 94-year-old Keith dissented. In one of his last opinions, he described a gallery of “martyrs of the struggle for equality”—civil rights advocates “who lost their lives in the quest for equal protection and voting rights.” Keith told me at the time that he had “wanted to dramatize the racist attitude of the majority” of the court—his two white colleagues. His opinion noted:

With every gain in equality, there is often an equally robust and reactive retrenchment. We must never forget that constant dialectical tension.

On the 6th Circuit, where Keith served for more than four decades, Trump has placed six judges, including Readler. Readler is 46 years old.

Trump’s appeals court judges are being selected for the bench not by a nominating commission, or even by a home-state senator, but by a few powerful white men choosing names behind closed doors. This is the opposite of Carter’s accomplishment, which was to equalize opportunity by diminishing the advantages that white male lawyers had enjoyed for centuries on their paths to the court. His committed and farsighted work to open up the judiciary is a principal reason it has held the trust of the public so well up to now. In 2002’s Detroit Free Press v. Ashcroft, Keith barred the Bush administration from keeping post–9/11 deportation hearings away from the public and the press. “The Executive Branch seeks to uproot people’s lives, outside the public eye, and behind a closed door,” Keith wrote. “Democracies die behind closed doors.” He repeated that phrase in his 2016 Ohio voting rights dissent. It’s a theory now being put to the test.