Mary Desmond | Staff Writer
On Wednesday, John Q. Barrett, a constitutional law and history professor at St. John’s University, continued the Department of Religion’s Week Nine Interfaith Lecture theme, “The Ethics of Presidential Power,” with a lecture titled “Civil Rights and Judicial Appointments: Presidents Kennedy and Johnson and Their Successors.”
In his 2 p.m. lecture, Barrett touched on six main points: the federal court and judicial appointment process; criteria for presidential appointments; judicial appointments during the modern civil rights era — starting with Calvin Coolidge; a case study of Judge A. Leon Higginbotham; an examination of presidential appointments following Kennedy and Johnson; and a discussion of the court’s future progress.
The Supreme Court was created by Article 3 of the Constitution. The article provides Congress with the right to create more courts as necessary. With time, the United States judicial system has developed into a three-level system. The U.S. Supreme Court, with nine justices, is at the top, followed by the U.S. Courts of Appeals, which have more than 100 judges throughout the country. At the lowest level is the U.S. District Courts, with hundreds of judges.
“We also have other Article 3 specialty District Courts, and we have non-Article 3 federal judges, all of whom are appointed to their office by the president with the advice and consent of the Senate,” Barrett said.
The president nominates judges, and then the Senate votes to confirm appointments.
“Underneath all of that legal technicality and constitutional structure — if you will — is plain old politics; that’s how we get our federal judges,” Barrett said.
There are certain characteristics and qualifications that prospective federal court appointees tend to have, Barrett said. They must have a legal background, a judicial temperament, and the ability to make neutral decisions and to be diverse.
“Diversity in every sense, from geography and age, to gender, ethnicity, race, religion, etc.,” he said.
Federal judicial court selections are made by the president, but in terms of District Courts and the Court of Appeals, the president generally defers to the local senator to make a recommendation. As the court appointments become higher up and more important — as in the Supreme Court nominations — the president is usually directly involved. Historically, whenever a progressive or path-breaking appointment has been made at any level, the appointment has directly involved the president, Barrett said.
“Our presidents exhibit themselves and demonstrate something about the values for which they stand and are governing in how they make these appointments,” he said.
Barrett then chronologically outlined presidential judicial appointments during the modern civil rights era, beginning with Calvin Coolidge. Race has been a defining factor of the national history since the inception of the U.S., so the civil rights era has broad chronological boundaries, Barrett said.
Calvin Coolidge appointed the first female to the federal judiciary in 1928, when he appointed Genevieve R. Cline to the U.S. Customs Court, which has since become the U.S. Court of International Trade.
In 1930, Herbert Hoover nominated John J. Parker to the Supreme Court, but he was not confirmed by the Senate, Barrett said. That was interesting, because he was not approved based on past decisions regarding race and organized labor. The NAACP and Organized Labor joined together and campaigned successfully to block his confirmation.
“Franklin Roosevelt, well, we could be here for the rest of the afternoon,” Barrett said.
Since Franklin Roosevelt was president for 12 years and the Supreme Court enlarged during his presidency, he significantly shaped the federal judiciary.
“Franklin Roosevelt forevermore will be the president who most distinctly shaped the federal bench by the quantity and qualities of appointees that he brought to the bench,” Barrett said.
Under Roosevelt, more Catholics and Jews were appointed to the Supreme Court than ever before.
“Think for instance, and this is just one little glimpse of this, of the message that’s involved when Franklin Roosevelt in January of 1939 appoints the most prominent, prolific, voluble civil libertarian, Sacco and Vanzetti-defending, etc., etc. — Felix Frankfurter, America’s top Jewish academic lawyer,” Barrett said.
Roosevelt made some progress in terms of women’s equality when he appointed Florence Allen to the Court of Appeals.
In 1937, Roosevelt appointed the first African-American federal judge, William Henry Hastie, to a District Court in the Virgin Islands. The appointment was a not a lifetime term.
Harry Truman was the first president to appoint an African-American to a position that had life tenure, when he appointed Irvin C. Mollison to the Customs Court. Truman also appointed Hastie to be governor of the Virgin Islands, and later, he appointed him to the Court of Appeals.
“This is a job in Philadelphia, so in terms of African-American judicial path-breaking, that’s really the moment. William Hastie already was the guy, but that was the moment,” Barrett said.
Though Eisenhower did appoint African-American judges to federal court seats, his legacy is really the civil rights-promoting men he appointed to the Supreme Court: Earl Warren and William J. Brennan Jr.
Warren was appointed to the Chief Justice position in 1953. The following year, the Warren Court heard Brown v. Board of Education.
“Justice Brennan becomes, of course, . . . a lion of civil rights on the Supreme Court,” Barrett said.
Eisenhower also appointed judges to the Fifth Circuit Court of Appeals, which covers Louisiana, Mississippi and Texas; those judges were termed the “unlikely heroes” by author Jack Bass, because they truly defended the ruling of Brown v. Board of Education, Barrett said.
In May 1961, John F. Kennedy described his understanding of judicial appointment saying, “I want for our courts individuals with respected professional skill, incorruptible character, firm judicial temperament, the rare inner quality to know how to temper justice with mercy, and the intellectual capacity to protect and illuminate the constitution and our historic values,” Barrett said.
Kennedy appointed 10 African-American judges during his three years as president; one of them was Thurgood Marshall. Kennedy also appointed a Latino judge.
“Kennedy is mostly frustrated, and mostly doesn’t pick the fights, to push that number much farther,” Barrett said.
Kennedy did try to appoint a few other African-American judges, but they did not make it through the Senate Judiciary Committee, which was led by James Eastland, a senator from Mississippi.
Lyndon B. Johnson appointed many black judges throughout the country to the federal courts. One of Johnson’s most impressive steps was convincing Marshall to give up his life position on the Second Circuit, so that he could become solicitor general, a known precursor position to becoming a Supreme Court justice. In 1967, with some political maneuvering by Johnson, Marshall was appointed to the Supreme Court. Johnson also appointed many civil rights judges.
One of the African-American judges who developed a close relationship with Johnson was Higginbotham. Barrett was a law clerk for Higginbotham, and during Wednesday’s lecture, he told Higginbotham’s story.
While attending public school in New Jersey, Higginbotham was told he would be placed in the menial skills courses; however, his mother fought for her son to stay on the academic track, and he ultimately graduated and became one of 12 African-Americans attending Purdue University.
At Purdue, Higginbotham and the other African-American students were denied housing, or even heated rooms, so he transferred to Antioch College. After graduating from Antioch, he continued onto Yale Law School, and upon completing his law degree, he tried to find a job. But he was not hired by any white law firms. So, he became a lawyer in a black firm and became a leader in the local NAACP chapter.
In 1961, Kennedy tried to make Higginbotham a federal judge, but Eastland refused to confirm him, so he was appointed to the Federal Trade Commission.
In 1964, Johnson nominated Higginbotham to the trial bench, and he was confirmed.
From 1966 to 1969, as the country’s problems with race reached a tipping point, Higginbotham became one of Johnson’s closest advisers on race. The day after Martin Luther King Jr.’s assassination, Higginbotham was called to the White House to consult with the president. He then spent the night as a guest in the family quarters.
“What he’s discussing with President Johnson is now, soon, for real, what can we do to make the lives of African-Americans better — not commissions, not proclamations, not talk — improvements,” Barrett said.
Johnson and Higginbotham continued their relationship. Later in his life, Higginbotham was recorded as saying that he never expected to admire Johnson, but over time, he became a great supporter of the president and his ability to finish work and to make results happen. Higginbotham said, “On domestic issues, there’s just no president in my view who has done as much in my lifetime to help the weak and the poor across the board,” Barrett said.
Higginbotham continued on to serve as Third Circuit judge for many decades before retiring, Barrett said.
After discussing the life of Higginbotham, Barrett continued his assessment of each president’s values and ethics based on his judicial appointments.
Richard Nixon appointed the first Asian-American judge to the Ninth Circuit.
Gerald Ford continued the trend of improving diversity in the courts.
“What he did was restore law to this country in very tangible ways after Watergate and the Nixon resignation,” Barrett said.
While Jimmy Carter did not have the opportunity to appoint any justices to the Supreme Court, he did increase the numbers of minorities and women in federal courts throughout the country, Barratt said.
In 1981, Ronald Reagan continued progress when he appointed the first woman to the Supreme Court: Sandra Day O’Connor.
George H. W. Bush appointed Clarence Thomas to the Supreme Court upon Thurgood Marshall’s retirement.
“What was important and clearly non-negotiable for President Bush was that we were not going to go back to an all-white Supreme Court, and I think that’s an accomplishment. I think that says something about ethics and values,” Barrett said.
Bill Clinton expanded the work of Jimmy Carter, and the openness of courts and the number of women and minorities in courts grew further while Clinton was president, Barrett said.
George W. Bush focused more on the ideology of appointees than anything else, Barrett said. Barrett said he is convinced that if Bush had been able to, he would have appointed the first Latino to the Supreme Court: Alberto Gonzales.
President Barack Obama’s selections for judicial appointments have been less ideologically based.
“He has not gone hard-left; he has not picked the progressive luminaries of liberal academia for traditional appointments, for instance,” Barrett said.
In the first two years of his term, he appointed two women and the first Latina justice. For the first time, three women are on the Supreme Court at the same time. Barrett said he thinks the court is headed toward an equal gender split, with four or five women at any given time.
“Now, notice what I have not mentioned? Homosexuals,” Barrett said.
In July 2011, Obama appointed J. Paul Oetken to the federal trial bench in New York; he was the first openly gay federal judge. In October of the same year, Obama appointed Alison Nathan to the same court. Nathan is a lesbian. In March 2012, Obama appointed Michael Fitzgerald, another openly gay judge to a District Court in California.
“But November 2011 — note also the withdraw of Edmund DuMont, nominated to the Court of Appeals for the federal circuit, a circuit judge for a specialty jurisdiction court,” Barrett said. “He’d been pending for 18 months, and the Senate was never going to act on this nomination.”
In conclusion to his lecture, Barrett said all people are connected and religion is not static. Religious development reflects human improvement and growth in knowledge and understanding. Barrett said he was not speaking to compare race and homosexuality, though he said they might very well be the same thing.
“I am equating humanity with humanity,” he said. “And I’m reminding all of us, myself included, that our faiths, our personal relations and our legal systems are founded on commitments, deep defining commitments to human equality.
“It’s a point where we converge; it’s something that we all share. And we’re at our bests, including our leaders leading us to betterment, when we — and they — live up to that ethic, to that faith and — indeed, it’s a heavy word — to the love that is equality.”