A Judicial Nominee Rejected Due To Racial Insensitivity Has A Veto Over All Alabama Federal Judges


Nearly 30 years ago, the sitting United States Attorney for the state of Alabama lost his chance to become a federal judge due to concerns about his views on race. Among other things, he’d labeled the NAACP an “un-American” and “Communist-inspired” organization that “forced civil rights down the throats of people.” He’d conducted a tenuous criminal investigation into voting rights advocates, culminating in an unsuccessful prosecution against a former aide to Dr. Martin Luther King, Jr. And an African American attorney who once worked for him testified that the nominee said that he “used to think [the KKK] were OK” until he found out some of them were “pot smokers,” that the nominee referred to his black subordinate as “boy,” and that the nominee had told the black attorney to “be careful what you say to white folks” after the nominee heard the attorney chastising a white secretary.

We’re talking, of course, about United States Senator Jefferson Beauregard Sessions III (R-AL).

Almost three decades after the Senate rejected Sessions’ confirmation, Rep. Terri Sewell (D-AL), the lone black member of Alabama’s congressional delegation, is urging President Obama to nominate an African American attorney to a vacancy on the United States Court of Appeals for the Eleventh Circuit. Currently there is only one black judge on the Eleventh Circuit, which hears appeals from Alabama, Florida and Georgia, all of which have significant African American populations.

Yet, thanks to the remnants of a long-dead patronage system, it’s not entirely up to President Obama who gets the nod for this Eleventh Circuit seat. Jeff Sessions will have a veto power over anyone named to this seat.

The source of Sessions’ ability to unilaterally block any nominee he chooses is the so-called “blue slip” process, which allows home state senators to deny a Judiciary Committee hearing to any judicial nominee from their state. Although the Eleventh Circuit hears appeals from three different states, its seats are doled out to the states and the vacancy Obama’s currently trying to decide how to fill is considered an Alabama seat.

Republican senators have not been shy about using their blue slip power to force President Obama to nominate conservatives — or at least to block nominees they unilaterally wish to stop. Thanks to the blue slip, Obama recently nominated a slate of judges to various vacancies in Georgia that were largely selected by Sens. Saxby Chambliss (R-GA) and Johnny Isakson (R-GA). Sen. Marco Rubio (R-FL) used the blue slip to unilaterally halt the confirmation of Judge William Thomas, an openly gay black man, to a court in Florida.

These kinds of strongarm tactics can themselves be halted, however, by Senate Judiciary Chair Patrick Leahy (D-VT). Leahy has the power to abandon the blue slip requirement — just as former Judiciary Chair Orrin Hatch (R-UT) did in 2003.