It’s been more than 3,000 days since U.S. District Judge Malcolm Howard announced that he would be stepping down from his position on the federal court in eastern North Carolina.
At roughly the same time, the then-freshman senator from North Carolina, Richard Burr, stood lecturing his colleagues on the senate floor about their blocking of votes for nominees to the federal bench.
“There is no doubt in my mind that I was sent here to do what the people of North Carolina heard me say I would do, and that was to work hard and to accomplish solutions to real problems,” he said at the time. “There is no doubt in my mind the task includes ensuring that the Senate provides judicial nominees up-or-down votes.”
Eight years later and Howard’s seat still remains vacant, due in part to Burr’s refusal to endorse Jennifer May-Parker, an African-American federal prosecutor in the Eastern District whom he’d approved years before and the President nominated last June.
Without explanation, Burr has refused to return the traditional “blue slip” which would give May-Parker the opportunity to a hearing before the Senate Judiciary Committee – not only stalling her nomination and hamstringing other judges on that court overloaded with cases but also giving North Carolina the dubious distinction of having the oldest federal district court vacancy in the nation.
And now the state has garnered another such distinction.
James Beaty, the lone African-American judge on the state’s federal district court, stepped down from his position on the state’s Middle District – which covers the areas from Durham to Winston-Salem – moving to senior status at the end of June.
North Carolina has one of the whitest and least diverse groups of federal district court judges in the country.
That’s a perception problem for the courts at the very least, particularly given that the ugliness of racial politics has resurfaced in North Carolina.
As Andrew Cohen points out in his article in The Atlantic last November, asking why there aren’t more black judges in the South:
“Indeed, at a time when minorities are being disenfranchised by Republican officials in Florida and Alabama and other Southern states, the continuing lack of black representation on our federal benches sends another strong message of a tolerance for unequal justice.”
As a group, federal district court judges in North Carolina look nothing like the population they serve.
Here’s a snapshot of the nearly 10 million people living in North Carolina: Roughly spilt between men and women, the state’s residents are 70 percent white, 22 percent African-American and eight percent Hispanic.
Compare that to the nine men and two women — all white — currently serving as active judges on the federal district courts here.
Those numbers don’t improve much when you add in the six judges serving on senior status. They’re all men too, though they include Judge Beaty, one of only two African-Americans to ever serve in the federal district courts of North Carolina.
The group also looks little like the population of federal district court judges serving elsewhere across the country.
Certainly other districts across the country are lacking in diversity, but that absence largely reflects the demographics of the states in which the courts are located.
For example, of the 17 states which have never had an African-American federal district court judge, Idaho has a population that’s less than one percent African-American. Others in that group with similar demographics include Maine, 1.4 percent; New Hampshire, 1.5 percent; Montana, .06 percent; and New Mexico, 2.5 percent.
But when compared to the composition of federal district courts in states with similar demographics, North Carolina is an outlier.
The eight million people who live in Virginia, for example, are 71 percent white, 20 percent African-American, and eight percent Hispanic. Of their 15 active federal district court judges, four are African-American.
In Michigan, with 10 million people who are 81 percent white, 14 percent African-American, and five percent Hispanic, there are likewise four African-American federal district court judges.
And in Ohio, with 11 million people who are 83 percent white, 12.5 percent African-American and 3 percent Hispanic, there are three African-American federal district court judges.
Interestingly, the judges who sit on the Fourth Circuit, the appellate court which serves North Carolina, South Carolina, Virginia, West Virginia and Maryland, are a much more diverse group.
Of the 14 active judges sitting on that court in Richmond, there are ten men and four women, and of the group, 11 are white, three are African-American and one is Hispanic.
Promoting diversity on the courts may seem at first blush to be little more than an exercise in political correctness.
But the lack of varied backgrounds and experiences has real world consequences. As Andrew Cohen notes:
It’s fair to ask why the presence of judges of a particular race ought to matter. In a perfect world, it wouldn’t. But the American legal system, and especially its criminal justice systems, still is riven by vast racial divides. Nowhere is this more true than in the Deep South, where racial disparity in sentencing still is profound and where black murder suspects are far more likely to be charged with a capital crime, and far more likely to be sentenced to death, than their white counterparts.
For the public, having judges on the bench who look more like a cross-section of the population and who share experiences or backgrounds similar to those appearing before them provides the comfort and confidence of fairness.
And for the judges, having colleagues of different races, ethnicities and genders as well as varying professional experiences brings a collective wisdom to the courts.
“Courts are deliberative bodies, and judges learn from each other,” said Alicia Bannon, counsel for the Democracy Program at the Brennan Center of Justice. “More diversity on the courts brings more life experiences that can inform judicial decision-making.”
That’s not a novel concept.
As noted in a recent New York Times editorial calling for more professional as well as racial and gender diversity on the courts:
Professional diversity on the federal bench was once more valued. In a 1992 tribute to Justice Thurgood Marshall, Justice Byron White spoke of the benefit of working with a jurist who, in addition to being the first black justice, had also been a renowned civil-rights lawyer. “Thurgood brought to the conference table years of experience in an area that was of vital importance to our work, experience that none of us could claim to match,” Justice White said. “Thurgood could tell us the way it was.”
The addition of Jennifer May-Parker to the federal bench here would be a good first-step towards much needed diversity in North Carolina.
But the likelihood of that happening fades with each day that Senator Burr continues his inexplicable obstruction. His office again did not return a request for comment, and Senator Kay Hagan’s office had no new information to offer on the status of the May-Parker nomination or on Burr’s intransigence.
In the meantime, a nominee to fill Judge Beaty’s seat may be in the works — hopefully one who’ll bring a fresh and different perspective to the federal court here.