Yesterday, the University of Virginia law school awarded Mississippi federal district judge (and UVA law alumnus) Carlton W. Reeves its Thomas Jefferson Foundation Medal in Law. In his acceptance speech, which opens with a moving discussion of the “complication[s]” involved in a black judge’s receiving an award named after Thomas Jefferson, Judge Reeves addresses what he calls the three “great assault[s]” on the federal judiciary.
The first great assault came during the post-Civil War Reconstruction Era, when “the Klan responded to the threat of democratic justice by trying to assassinate black judges, shooting black jurors, and murdering federal court officers.” Reeves presents a powerful summary of the terrible suffering and injustice that blacks in the South endured.
The “second great pushback against the judiciary” was triggered by the Court’s ruling in Brown v. Board of Education. “White power returned to the playbook of the past: smearing judges, shrinking judicial power, and scrubbing diversity from courtrooms.” Reeves provides a poignant account of the education and opportunities he received when that pushback failed.
According to Reeves, “We are now eyewitnesses to the third great assault on our judiciary.” By his account, that assault consists, first and foremost, of various tweets and comments by Donald Trump, both as candidate and as president, slamming various judges and rulings. But you can believe, as I do, that many of those tweets and comments were deplorable without seeing in them anything remotely like the return of the Klan. And you can likewise lament, as I do, that Reeves has received a lot of vicious mail without concluding that the “deliverers of hate who send these messages aim to bully and scare judges who look like me from the judiciary.” (Reeves’s judicial grandstanding on abortion and marriage provide ample non-race-based reasons for people to be upset with him, though that is certainly no excuse for vicious messages.)
Another part of this “third great assault,” Reeves tells us, is the lack of racial and gender diversity in President Trump’s judicial picks. The subtitle of Reeves’s speech—“A Call for Justice, Truth, and Diversity on the Bench”—conveys the absolute value that he assigns to diversity. His talk of “[a]chieving complete gender equality on the federal bench” displays his quota mentality. He also misuses Madison when he quotes him, in Federalist No. 39, as “caution[ing] that it was ‘essential’ a democracy’s officials ‘be derived from the great body of the society.’” Madison was of course talking about the House of Representatives, not the judiciary.
Previous Republican presidents, Reeves contends, have “had no trouble finding women and people of color with suitable judicial philosophies.” After all, “Justice Sotomayor was originally a George H.W. Bush appointee.” Reeves somehow misses that this example illustrates the very opposite of what he intends: In a deal with New York senators, Bush nominated Sotomayor despite grave White House concerns about her judicial philosophy. More generally, I sure wish that those who seem to imagine that lots of blacks and women “with suitable judicial philosophies” are being passed over would offer up some names of interested candidates.
I’m also not sure how it’s proper for a federal judge to be criticizing a president’s judicial picks. But Reeves goes even further. In faulting judicial nominees for refusing to address whether Brown v. Board of Education was rightly decided, he supports Senate Democrats’ smear game. In a stealth slam of the five conservative justices, he cites Justice Kagan’s recent dissent in a death-penalty case (which I discussed here) for the proposition that “injustice happens when courts place expediency and finality ahead of truth.” He also faults the Supreme Court for its own “narrow set of perspectives” and even wonders “What Dred Scotts and Plessys will be handed down” by it.