Misplaying the Race Card
A look back at Ed Carnes's Eleventh Circuit nomination
My recent post on the very small handful of contested cloture votes on judicial nominations that took place before 2003 piqued my interest in George H.W. Bush’s nomination of Ed Carnes to the Eleventh Circuit in 1992. What disturbing things in Carnes’s record, I wondered, could have spurred thirty senators to vote against cloture on his nomination?
The answer I discovered amazed me. But it shouldn’t have.
One of the very ugly aspects of the judicial-confirmation process in recent decades is how recklessly the Left wields the race card against conservative judicial nominees. That’s especially true for white male conservatives from the South. As the Carnes nomination shows, it doesn’t matter whether a nominee has demonstrated a clear commitment to principles of racial equality, and it doesn’t matter whether civil-rights activists and others who actually know him and have worked with him forcefully attest to his commitment.
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In January 1992, President Bush nominated Ed Carnes to fill the Eleventh Circuit seat that had been vacated by Judge Frank Johnson. Johnson was a legendary figure whose rulings during his more than two decades as a federal district judge (1955 to 1979) were credited with ending segregation and advancing voting rights in Alabama.
Since his graduation with honors from Harvard Law School in 1975, Carnes had worked in the Alabama attorney general’s office. In his early years, he prosecuted criminal cases across Alabama and also litigated civil cases in state and federal court. From 1981 on, he headed the capital-litigation division of the attorney general’s office, which represents the state in appellate and habeas proceedings in death-penalty cases. Working under Democratic attorneys general, Carnes had other important assignments. For example, he led the state’s efforts on appeal to affirm the conviction of the Ku Klux Klansman who murdered four young black girls in the 16th Street Baptist Church bombing in 1963.
Alabama’s Democratic senators Howell Heflin and Richard Shelby strongly supported Bush’s decision to nominate Carnes. (Shelby did not join the Republican Party until the end of 1994.) Heflin hailed the “strong support” that Carnes received “from the civil rights community in Alabama.”
If other Democratic senators wanted to prevent Carnes’s confirmation, they could have prevailed on Judiciary Committee chairman Joe Biden not to schedule a hearing on Carnes’s nomination. That’s exactly what Biden did to a D.C. Circuit nominee by the name of John Roberts, nominated the very same day as Carnes. Instead, the committee held its hearing on Carnes’s nomination on April 1, 1992.
Opponents of the death penalty, led by Stephen Bright of the Southern Center for Human Rights in Atlanta, vociferously objected that Carnes was not a suitable replacement for Frank Johnson. Bright alleged that Carnes was “known for his very ruthless and very aggressive pursuit of the death penalty.”
The attacks on Carnes invited some notable responses. Frank Johnson himself volunteered that he thought that Carnes was a “very good” choice. Civil-rights activist Morris Dees, co-founder of the Southern Poverty Law Center in Montgomery, Alabama and himself an opponent of the death penalty, praised Carnes’s “outstanding record on civil rights.” Dees lambasted Bright for “obvious omissions and misstatements” in a letter that Bright wrote against Carnes, and Dees declared that “it is simply unfair for Steve [Bright] not to admit that Ed [Carnes] has by far the strongest record on civil rights of any federal judicial nominee in at least the past decade.”
Death-penalty litigation is fraught with contention. So that makes it all the more remarkable that lawyers who represented death-row inmates and who lost to Carnes praised him. For example, in his testimony to the Judiciary Committee, David Bagwell, a former law clerk to Judge Johnson, recounted his experience representing two different individuals in litigation against Carnes “in State Court and in Federal Court, and from the bottom level all the way to the U.S. Supreme Court”:
In both cases, Ed Carnes won on every substantive issue, and the result in both cases was that my client was executed.
Any yet, Ed Carnes could not have been fairer. In my nineteen years since law school, no opponent has been fairer to me. No opponent has been more straightforward and more forthcoming. None has been more willing to signal in advance what he was sending my way next. None has been more willing to help.
It turns out that another lawyer who wrote to thank Carnes was Stephen Bright himself, in the one and only case in which he litigated against Carnes. After the death sentence of Bright’s client had been upheld all the way through the state court system and a federal district court judge had denied the condemned man any relief, Carnes agreed to join a motion by Bright to resentence his client to life imprisonment without parole instead of death. The court granted the motion. In his letter to Carnes, Bright wrote to “express again my appreciation to you for working out this disposition of this case” and stated that he was “most grateful.” So much for Carnes’s supposed “very ruthless and very aggressive pursuit of the death penalty.”
There is so much more that it would take a 20,000-word essay to document. Well before the Supreme Court (in Batson v. Kentucky (1986)) lowered the threshold for criminal defendants to challenge a prosecutor’s use of peremptory strikes as racially discriminatory, Carnes told district attorneys that they could not and should not strike a black juror unless they would strike a white juror in the same situation. Carnes was also a national leader in the fight against the use of peremptory strikes by white criminal defendants to get all-white juries, and the Alabama Black Legislative Caucus, the Southern Christian Leadership Conference, and the Southern Poverty Law Center supported him in this fight.
In his private life, Carnes manifested the same vigorous opposition to racial discrimination. More than three years before his nomination, when he encountered racist innuendo in his daughter’s school newspaper, he wrote a long letter to the headmaster in which he declared his “fundamental” objection to the innuendo:
Racial discrimination is wrong. Racially hostile and denigrating comments are wrong. Publishing or condoning such comments is wrong.
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Bright’s attack on Carnes gained little immediate traction. On May 7, the Judiciary Committee favorably reported Carnes’s nomination to the Senate floor by a vote of 10 to 4. Even the senators who voted against Carnes distanced themselves from some of the attacks on him. Ted Kennedy avowed that Carnes “is not a racist” and noted that “[o]n a number of occasions in both his professional life and his private life he has demonstrated his opposition to such discrimination.” Howard Metzenbaum said that he was “impressed by the support [Carnes] has garnered from many well-respected attorneys in Alabama, especially from Morris Dees,” and that “This is not an easy or clearcut vote for me.” Joe Biden said that Dees had made “an extremely persuasive case” for Carnes and that Carnes “has so many good things in his record.”
But riots that occurred across Los Angeles days earlier would soon inflame Carnes’s nomination. Rodney King was an African American who was brutally beaten by four Los Angeles police officers as they arrested him after a high-speed chase. On April 29, a jury consisting of ten whites, a Latino, and an Asian American acquitted three of the officers on charges of using excessive force and failed to reach a verdict regarding the fourth officer. The riots that broke out led to 63 deaths, more than 2000 injuries, more than 12,000 arrests, and property damage estimated at more than one billion dollars. (I’m relying on this Wikipedia entry.)
If you’re wondering what possible connection there was between the Carnes nomination and the Rodney King riots, you’re thinking logically, not politically. As a logical matter, the acquittals would have highlighted the wisdom of Carnes’s efforts to ensure that white criminal defendants couldn’t escape having African American jurors. But as a political matter, the riots dramatically elevated the issue of racial justice six months before a presidential election. Many Senate Democrats were looking for a scapegoat. And the Carnes nomination was right in front of them.
The ill-founded objections of death-penalty opponents would soon be repackaged in more explicitly racial terms, and Carnes’s nomination would be severely imperiled.
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How Senator Richard Shelby managed to strong-arm his fellow Democrats to get Carnes confirmed will be the topic of my next post.