A Closer Look at President Carter’s Groundbreaking Judicial Appointments

by Angela N. Johnson

Mary Clark’s article focuses on President Carter’s appointments of women to the federal bench and the impact this made on future judicial appointments. According to Clark, “Carter’s groundbreaking appointment of women judges was motivated by his commitment to women’s equality as a human right and was achieved through substantial reliance on merit selection and affirmative action principles” (Clark, Carter’s Groundbreaking Appointment of Women to the Federal Bench: His Other “Human Rights” Record 2003, 1132). Prior to Carter’s term in office, just eight women had been confirmed to Article III judgeships (Presidents Roosevelt, Truman, and Kennedy each appointed one woman, Johnson appointed three women, Nixon and Ford each appointed one woman).  When Carter took office in 1977, just “one woman served among ninety-seven judges on the federal courts of appeal and five women among nearly 400 district court judges. By the time he left office in 1981, Carter had appointed forty women to Article III courts of general jurisdiction; eleven at the appeals court level and twenty-nine at the district court” Id. at 1133. The contrast of Carter’s appointments is clear when recognizing that 15.8% (or one in six) of Carter’s 259 judicial appointees were female, compared with less than one percent of each of his predecessors’ appointments.

According to Clark, three factors allowed for this dramatic increase in appointments. First, “Carter worked to reform the judicial appointments process by introducing citizen nominating commissions, merit selection principles (i.e., “the best candidate for the job”), and affirmative action (seeking out qualified women and/or people of color) where political patronage and senatorial prerogative had previously governed” Id. at 1133. This model mirrored that which Carter utilized as Governor of Georgia.  Understandably, this increased the eligibility pool to include women.  Second, Clark credits the “late 1960’s/early 1970’s resurgence of the women’s movement and entry of large numbers of women into the legal profession brought substantial pressure to bear on Carter to name women to high office generally and to judgeships specifically” Id. at 1133.  A third essential component was the fact that the Omnibus Judgeship Act of 1978 (“OJA”) created 152 new judgeships and “the vast majority of Carter’s women judges, and every one of his female court of appeals candidates, was named to the bench following the OJA’s enactment” Id. a 1133. Party politics worked in Carter’s favor, as well.  The Democrat-controlled Senate confirmed 88.2% of his nominees – “compared with 65.9% when the next Democratic president, Bill Clinton, faced a republican-controlled Senate” Id. at 1134.

Prior to Carter’s appointments, senators of the persident’s party from the state in which a federal district court vacancy arose were largely responsible for naming candidates. Presidents held the responsibility of naming candidates for federal court of appeals, which encompass more than one state. Moreover, senators from the home state of the judicial nominee used “blue slips” which gave them the power to object the judicial nominee – in which case no confirmation hearing would even be held. This all changed when Carter took office and by executive order issued within a month of entering office, Carter created the U.S. Circuit Judge Nominating Commission.  The Commission was organized in thirteen regional panels (corresponding to the then eleven circuits (Circuits Five and Nine were divided due to their large size).  The Commission’s task was to submit five names for each vacancy – the purpose was to break the hold of politicians and the organized bar over judicial appointments.  To fulfill this purpose, diverse panelists were sought comprised mainly of women, non-lawyers, and minorities.  Assistance in compiling the panel members was sought by two nonprofit organizations: The National Women’s Political Caucus’ Legal Support Caucus and the Judicial Selection Project.  Carter asked the panelists to find judges with desirable attributes, “membership in good standing of at least one state bar, integrity and good character, sound health, outstanding legal ability, commitment to equal justice under law, and judicial termperament” Id. at 1141. Carter also asked the panelists to pursue the nomination of women and minority candidates in circuits where none or few had served before. To address the panels for the district court vacancies, Carter lobbied senators to adopt similar reforms (to that of the Circuit Court panels) in the Senators’ home states.

In addition to changing the “old boys’ network” methodology, Carter had a second hurdle to overcome.  His efforts for reform the judiciary were stymied by the ABA Standing Committee on Federal Judiciary’s lower ratings of non-traditional candidates.  According to Clark, “Consistent with practices dating from the Eisenhower era, Carter forwarded his candidates’ names to the ABA Standing Committee for review prior to submitting them to the Senate.  Those candidates who received a “qualified” or better rating were forwarded to the Senate, while those rated “unqualified” were abandoned.  The ABA’s rating system emphasized several elements – including a minimum of twelve to fifteen years in practice and substantial trial experience – which greatly disadvantaged female and minority candidates” Id. at 1144.  Women and minorities were relatively newcomers to the profession and therefore lacked the years of practice and experience held by most white male judicial candidates.  Many of Carter’s non-traditional candidates had not worked in law firms, which was more typical of the white male judicial candidates.  Additionally, nearly all of the ABA committee members were white males. Just 29.7% of Carter’s female judicial candidates received one of the ABA’s top two ratings. Women’s lobbying groups pushed Carter to follow through with the nomination of women candidates despite the ABA’s apparent discriminatory ratings. Moreover, Carter threatened the ABA by indicating they must amend their evaluation system or he would ignore the process and submit his nominations directly to the senate.  Additionally, Brooksley Landau became the first woman chairman of the ABA Standing Committee in 1980 and under Landau’s leadership, the ABA Standing Committee revised its ratings criteria to place less emphasis on length ofexperience.

The role the Omnibus Judgeship Act of 1978 played in Carter’s success cannot be ignored.  Despite Carter’s commitment, he made little progress in diversifying the federal bench in the first two years of taking office (no women had been appointed to any of the twelve court of appeals vacancies and only a handful of women were named to the district court).  Much more movement was made after Congress passed the OJA.  Thirty-five of Carter’s forty women judges were appointed after the OJA’s enactment, including all eleven of his appeals court appointees and twenty-four of his twenty-nine district court appointees.  Only a few appointments were to fill pre-OJA vacancies created by judges’ retirements or deaths (rather than new judgeships created by the OJA). “In the end, ten of the thirty-five OJA appellate court judgeships, or nearly thirty percent, went to women, while twenty-four of the 117 district court seats, or approximately one fifth, went to women.  While modest in the context of Carter’s stated goals and advocacy groups’ expectations, these appointments represented a breakthrough in women’s opportunities for service on the federal bench” Id. at 1161.

In addressing why Carter felt so strongly that more women should be appointed to the federal judiciary, Clark offers the following:

  1. Carter was familiar with and supported the women’s movement and was deeply committed to human and civil rights.  He felt that women’s rights are human rights,
  2. Carter’s commitment to women’s equality was shaped by the women around him – including his wife, mother, and his administration officials who were women.
  3. Carter’s commitment to diversifying the bench grew from his non-lawyer view and deep skepticism of the legal profession, which he viewed as a closed “old boys’ network.”
  4. Carter felt the judiciary should be more representative of the American people and “of the population, not of the lawyer population, but the population” Id. at 1147.
  5. “He was committed to women’s equality of opportunity as a substantive matter and believed that women’s presence on the bench would promote greater public trust and onfidence in the judiciary as a symbolic matter” Id. at 1149.

In sum, Clark writes that “Carter’s appointmet of five times as many women judges as all of his predecessors combined stands as one of his administration’s ground-breakng human rights achievements and is a testament to his commitment to women’s equality and representative governance.  While Carter’s successors did not share his commitment to these principles, his departure from historic patterns of judicial appointments was so substantial as to prevent Reagan and Bush I from reverting to the tokenism characterizing women’s opportunities for judicial service pre-Carter” Id. at 1161.

Source Citation: Clark, Mary L. “Carter’s Groundbreaking Appointment of Women to the Federal Bench: His Other “Human Rights” Record.” American University Journal of Gender, Social Policy & the Law, 2003: 1131-1163.

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