NAACP Legal Defense & Educational Fund

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.

As expected, the Senate confirmed two judicial nominees yesterday, bringing the total number confirmed in the new Congress to five, The Hill reports.

The confirmations are an early sign that an agreement between senators to move noncontroversial business forward without procedural blocks is having some effect. There remain, however, 101 vacant seats subject to Senate confirmation on the federal courts. And federal judges are now retiring at a rate of one per week, The Washington Post reported last week in a front-page story noting that federal judicial vacancies have reached a "crisis point."

"With 100 vacancies to fill, the Senate should be confirming judges every week as part of its regular business," NAACP Legal Defense and Education Fund (LDF) President John Payton said in a statement after the vote. "We expect to see many judicial confirmations this session. Nothing is more important to the administration of our justice system."

The Senate confirmed Mississippi Supreme Court Justice James Graves by unanimous consent for the U.S. Court of Appeals for the Fifth Circuit. Graves will become the first African American from Mississippi to serve on the Fifth Circuit, a development that LDF Washington Office Director Leslie Proll called a "historic" for the diversity of the federal courts.

"Today's vote represents a sea change," Proll said after the vote. "James Graves is truly a consensus candidate; he is strongly supported by civil rights organizations and the two Republican Senators from Mississippi, Thad Cochran and Roger Wicker."

The Senate also voted 93-0 to confirm Santa Clara Superior Court Judge Edward Davila to the U.S. District Court for the Northern District of California.

To learn more about the judicial vacancy crisis and follow developments, visit JudicialNominations.org.