The Fight for “Equal Justice Under Law”

The Supreme Court’s 1954 Brown v. Board decision is rightly hailed as the landmark civil rights moment of the 20th Century. But the role of stalwart lower federal court judges in advancing the cause of equality and giving meaning to our Constitution’s promises gets less attention. The fact is, for decades federal judges at the district and circuit court levels have most often been the ultimate arbiters breathing life into the Constitution’s promise of equality for all.

Today, however, it too often seems that advocating for or designing discriminatory policies is a required qualification for a Trump Administration nomination to the bench. In some respects, the greatest indictment of Republicans’ tolerance for racism in their nominees is how hard it was to stop the two nominations that actually failed — Ryan Bounds and Thomas Farr.

As the Opinion Editor for the Stanford Review, Ryan Bounds authored one offensive and inflammatory piece after another. He compared diversity initiatives to Nazi book-burnings; described diversity trainings as a “pestilence”; said there was “nothing really inherently wrong with the University [Stanford] failing to punish an alleged rapist”; and wrote in one piece that there shouldn’t be any “race-focused groups” on campus because “white students, after all, seem to be doing all right without an Aryan Student Union.” Yet, even after these writings came to light, Senate Republicans and the White House stood by him and rammed his nomination through the first floor vote of the confirmation process with a bare majority of 50 votes. They did so over the objections of myself and Bounds’ other home state Senator, Senator Wyden, disregarding the potential destruction of long-standing Senate traditions and ignoring the protests of organizations such as the National Women’s Law Center and the Leadership Conference on Civil and Human Rights.

As the clock ticked down to the final vote on Mr. Bounds’ confirmation, I was incensed that the Senate could potentially confirm someone who held such offensive views as the ones in those articles, and distressed at the imminent shredding of yet another Senate check on partisan extremism by overriding the objections of both home state Senators for the first time in a century.

So I made one last-ditch effort to prevent the Senate from driving over this cliff, and talked directly with a number of my Republican colleagues to make sure they had seen these articles. Most were either uninterested or were wary of voting against a Trump nominee. But one, Senator Tim Scott, said, “Send the articles to me.” I sent them, and followed up with my colleague from South Carolina some time later. The following morning, Senator Scott told his leadership and his caucus that he could not support Ryan Bounds, dooming his nomination.

Unfortunately, the lessons of the Bounds nomination didn’t sink in at the White House or at the helm of the Senate Republican conference. If there were a lifetime achievement award for voter suppression targeting minority voters, Thomas Farr — the Administration’s nominee to be a District Court Judge for the Eastern District of North Carolina — would be a strong contender.

In 1990, Jesse Helms infamously ran a blatant race-baiting campaign against Harvey Gantt, the first African American mayor of Charlotte. A key strategy of that campaign, borrowed from his 1984 election, was to stop minority voters from casting their votes. In 1984 Mr. Farr was, according to the U.S. Department of Justice, the “primary coordinator” of the Helms’ campaign’s ominously-named “ballot security” programs. Then in 1990, he consulted on the voter intimidation campaign and was the attorney of record defending illegal voter suppression efforts. These efforts were so egregious that North Carolina Republicans and the Helms campaign were barred from doing any election protection activities for 6 years without prior court approval.

Despite that record of unabashed voter suppression targeting minority voters, Mr. Farr was headed for a party line confirmation. Not even the revelation of a Department of Justice memo written during George H.W. Bush’s presidency laying out the investigation into the North Carolina GOP’s voter suppression efforts looked like it could derail Mr. Farr’s nomination.

With the clock ticking down to vote, I forwarded information on Farr’s record to two key Republican senators before the cloture vote. In addition, my team spent the night before the vote searching for additional details and, through a contact on the ground in North Carolina, we managed to unearth a trove of legal documents about these campaigns and the efforts to suppress the vote that had not previously been brought to light. These documents included affidavits from voters who had received some infamous postcards designed to scare African American voters away from the polls, as well as copies of the postcards themselves. The text of the postcards had been known, but nobody in the Senate had seen them. Of course, I shared these documents with colleagues and continued the discussion on the Senate floor during the cloture vote.

As with the Bounds nomination, Senator Scott scrutinized the information even after the first vote narrowly passed, and reportedly organized a meeting in his office with one of the authors of the original DOJ memo and several other Republican senators. Not long afterwards Senator Scott announced his opposition to the Farr nomination, once again spiking a racist nominee who, given his record, could not be expected to be a fair and impartial judge, especially when it comes to access to the right to vote.

It should not take extraordinary, eleventh-hour efforts like these and acts of political courage by a lone Republican Senator to keep individuals with legacies of racial insensitivity or openly racist practices from lifetime appointments to the federal bench.

None of us, no matter the color of our skin, can escape the influence of America’s long, difficult history of racism. From our deep, unconscious biases to the rising tide of white nationalism, we continue to see its legacy in every facet of our society: criminal justice, education, health care, housing, job opportunities, and on and on. By helping to enforce the laws against discrimination, our judiciary has an essential, indispensable role to play when it comes to finally changing that story.

This goal — striving to leave behind our history of racism and discrimination and move closer to the values and principles enshrined in our Constitution and Declaration of Independence — should be bipartisan and universally shared, just as support for Brown v. Board is bipartisan and universal today. To reach that goal, however, we need the party of Lincoln to remember its roots and to help create an American judicial system that, as carved above the Supreme Court’s doors, provides everyone “Equal Justice Under Law.”

Oregon Senator Jeff Merkley •