January 2012

After meeting with Magistrate Judge Patty Shwartz, Sen. Robert Menendez (D-N.J.) announced that he will reverse course and support her nomination to the U.S. Court of Appeals for the Third Circuit. "Judge Shwartz satisfactorily answered questions covering important legal topics such as current law on the rights of corporations under the First Amendment, constitutional limits on Executive Branch power and the application of heightened standards of review under the Constitution," he said in a statement. Menendez had previously opposed her nomination and had not yet submitted the blue slip required to move the process forward.

Following a swearing-in ceremony for now-U.S. District Judge Robert D. Mariani, Middle District of Pennsylvania Chief Judge Yvette Kane called on her U.S. senators to fill several vacancies in the district as soon as possible, The Scranton Times Tribune reports. The state has six vacancies – but no nominees – because Sens. Bob Casey (D-Penn.) and Pat Toomey (R-Penn.) have not sent recommendations to President Obama. Casey said they are “working on it,” but worried that the Senate would not confirm any nominees, now that election season is under way.

Regarding President Obama’s four recent recess appointments, the Justice Department released a memo in which it advised that they are constitutional. In his press briefing, White House Press Secretary Jay Carney further supported the legality of the appointments, saying, “We believe our legal argument is very strong, will absolutely pass muster.” In retaliation for the appointments, Sen. Charles Grassley (R-Iowa) is threatening to halt pending nominations for Senate confirmation, Bloomberg News reports.

The Latest in “In the News”

• “U.S. Sen. Robert Menendez right to meet with blocked judge,” from The Star Ledger
• “Obama Nominees Cool Heels as Divided Senate Stalls on Confirmation Votes,” from Bloomberg News
• “Senate Republicans consider blocking future presidential nominations,” from Daily Kos

The Latest in “Recommended Readings”

• “Appointments Challenge Senate Role, Experts Say,” from The New York Times
• “President Obama’s Judicial Nominees: A Question of Qualifications,” from The Dallas Morning News
• “Senator should drop block of judicial nominee,” from The Washington Post

By Tomiko Brown-Nagin, Munford Boyd Professor of Law, Justice Thurgood Marshall Distinguished Professor of Law, and Professor of History at the University of Virginia. She is the author of Courage to Dissent: Atlanta and the Long History of the Civil Rights Movement.

Judge Robert L. Carter passed away last week. I had the honor of serving as a law clerk to the judge and found that experience profoundly rewarding. The judge, a brilliant man best known for his role as a chief strategist in Brown v. Board of Education, inspired me and many others. I share memories of my experience with him to shed light on his stupendous legal ability, his character, and his contributions as a mentor who taught invaluable lessons about life and the law. 

As a NAACP Legal Defense Fund lawyer, Judge Carter litigated Briggs v. Elliott, the South Carolina case consolidated with four others as Brown. We initially bonded over my South Carolina roots: he had a hand in my life’s trajectory, and he knew it. I, in turn, saw in the judge a model of professional success and outstanding moral character. Each day, he made something extraordinary seem ordinary:  the idea that one individual could touch another’s life and radically alter its course. After spending a year in the presence of this great man — a lawyer who faced racial threats and insults merely for practicing his profession — a clerk for Judge Carter could scarcely contemplate disengagement from the world. The judge’s life and work taught social responsibility.

Over the course of his career as a lawyer, Judge Carter earned a reputation as a man of strong convictions, unyielding principle, and great passion. Carter earned the reputation when, as Thurgood Marshall’s lieutenant, he consistently took the most “radical” view among LDF strategists, and when he resigned as General Counsel of the NAACP to support a colleague’s right to criticize the Warren Court. Yet, the judge, a Nixon appointee, taught me that success in the legal profession requires a clear head, a balanced and context-specific assessment of a problem, and a judicious temperament. He conveyed that passion for one’s work or causes can be productive, only if coupled with strategic thinking and professionalism.

The judge taught this lesson in chambers on many occasions. In a long-running class action employment discrimination suit he once counseled that it would be counterproductive to coerce compliance with his orders, despite the defendant’s continued resistance to opening job opportunities to the plaintiffs. Sanctions might have been ordered in that case. But the judge had presided over the action for years. Knowing the parties and issues very well, he concluded that it made no sense to force this defendant into submission at that particular moment in time. Judges should neither look for, nor create, confrontations where they can be avoided. A judge might effectively invoke the full force of his powers on some occasions, but on others a thoughtful judge might choose not make a big show of his full powers. Good judging required knowing when to do which. 

The judge also taught judiciousness through his writings about Brown. Not content to bask in the afterglow of his great achievement, the judge critiqued the legal strategy in Brown. He found a paradox. Brown served the U.S.’s geopolitical interests, and in many ways, propelled race relations forward in this country. But, ironically, in the public schools context, Brown proved a tremendous disappointment. The federal judges charged with articulating rights, and local officials charged with implementing legal remedies, ultimately bear the blame for Brown’s mixed legacy in the schools. However, Judge Carter also found fault with himself and his colleagues. The lawyers, he said, fixated on the constitutional dimensions of Brown, when the case also touched upon critically important matters of educational philosophy and pedagogy. The attorneys did not seriously contemplate, much less adequately define, quality education. That limitation left generations of black students adrift in schools, subject to social experimentation, or worse, educational malpractice.