The government shutdown epitomizes the dysfunction caused by a small faction of Congress. But for federal judicial nominations, which require the “advice and consent” of the Senate, obstruction is nothing new. The confirmation process has been broken for some time. The result is a judicial vacancy crisis that harms the administration of justice and, just as important, the diversity of the federal bench.
Sen. Marco Rubio has blocked the nomination of William Thomas to Florida’s federal district court. Thomas is the first openly gay African-American nominee to any federal court. Sen. Rubio’s own 64-member judicial search commission supported Thomas as did the senator, initially. Sen. Rubio has now withdrawn his support, effectively denying Thomas a confirmation vote by the Senate. This obstruction, in the face of a superbly qualified candidate, is cause for great concern. But it is not the only issue looming for Florida’s federal judiciary.
Another issue concerns the racial diversity of judges on the federal appellate court that serves Florida, Georgia and Alabama, the U.S. Court of Appeals for the Eleventh Circuit. With the ever-shrinking docket of the U.S. Supreme Court, the Eleventh Circuit is effectively the court of last resort for residents of these states. Twenty-five percent of the residents are African-American, giving the Eleventh Circuit the highest percentage of African Americans of any circuit court in the country.
Although there are 12 judicial seats on the Eleventh Circuit, only one is held by an African American. Judge Charles Wilson, from Florida, was appointed by President Clinton in 1999.
Only one other African American has ever served on this court. The Eleventh Circuit was created in 1981, when Congress divided six states comprising the Fifth Circuit into two circuits. At that time, Judge Joseph Hatchett, also a Floridian and the only African American on the Fifth Circuit, was reassigned to the Eleventh. When he retired, Judge Wilson took his place.
In other words, the number of African-American judges sitting today on the Eleventh Circuit is the same as it was more than 30 years ago. This should concern everyone who cares about ensuring that our federal judiciary reflects the diversity of our nation and that our courts inspire confidence among our communities. Given its substantial African-American population, and the large pool of superbly qualified African-American attorneys and judges from which to select an appellate judge, the Eleventh Circuit should have more than one African-American jurist by this time.
The lack of racial diversity on the Eleventh Circuit stands in stark contrast to its neighboring circuit courts. Four of the 15 judges on the Fourth Circuit (Maryland, Virginia, West Virginia, North Carolina and South Carolina) are African-American. Two of the 17 seats on the Fifth Circuit (Mississippi, Louisiana and Texas) are filled by African-American judges.
President Obama has already secured confirmation of two judges to the Eleventh Circuit, a white female from Georgia and a Latino nominee from Florida. He has nominated a white woman, Jill Pryor, to another Georgia vacancy. We should applaud this increase in gender and ethnic diversity on the Eleventh Circuit.
Now it’s time for President Obama to focus on bringing greater racial diversity to this court. Fortunately, there are several opportunities for the president to do just that. A fourth vacancy, also from Georgia, is open on the Eleventh Circuit. Judge Rosemary Barkett from Florida recently retired, creating yet another vacancy. Judge Joel Dubina from Alabama is expected to follow, creating a sixth vacancy. Qualified African-American candidates must receive strong consideration.
Diversity within the federal judiciary should be a paramount concern for all those affected by its decisions. Sen. Rubio should cease his antics and allow William Thomas to be confirmed by the Senate. At the same time, President Obama should even more aggressively seek to ensure that nominees to the Eleventh Circuit reflect the rich diversity of the states it serves.
Leslie Proll is the director of the D.C. Office at NAACP Legal Defense and Educational Fund, Inc.