Opportunity to crack ‘white boys club’ puts Ohio’s senior senator in spotlight, especially after backdoor attempt to return Dettelbach as US attorney

One of the perquisites of being a United States Senator is that, when your party controls the White House, you have the privilege of making recommendations to the President when vacancies arise for key positions like federal judgeships and US Attorney.

Historically, the nomination process for these powerful and prestigious positions has been an insider’s game. This is why the federal judiciary has been for much of our history, just like the US Senate itself, an exclusive white boys club.

As my former professor, the brilliant and distinguished A. Leon Higginbotham, Jr., who served with distinction as a federal judge on both the district and appellate court levels, noted in a 1992 New York Times op ed, The Case of the Missing Black Judges: "For 145 years the Federal courts in the continental United States — the Supreme Court, Courts of Appeals and District Courts — were entirely made up of white males.”

I might not look that old but every black federal judge who has ever served in the continental United States was appointed during my lifetime.[1] (As Heather McGhee noted in a recent virtual appearance at the Cleveland Public Library, "we're a young country; our history is not that hard to know.")

The inside nature of the old boys club was made real to me during the Carter administration. I received a call from a college roommate who was an assistant White House counsel. He said that George W. White, then a Cuyahoga County Common Pleas judge, was under consideration for the local federal bench and did I know any reason why that might not be a good idea.

I gave Judge White a ringing endorsement and felt more than a twinge of pride after White was nominated and confirmed, the first African American judge to serve on the Northern Division of the US District Court.

For a black man or black woman, there is no glide path to becoming a federal judge or US attorney. Your best bet is to keep your head down and work your tail off, excelling to such a degree as a person of integrity, diligence and skill that you rise to the top on merit.

Such traits are what led Bill Clinton to select Solomon Oliver, at that time a fairly obscure assistant dean at Cleveland State University’s law school, as a federal judge.

Like Judge White before him, Oliver was later chosen by vote of his colleagues to become chief judge of the District.

Judge Oliver’s pending move to senior status creates one of the three opportunities now before Brown to help change the court’s complexion and perception. Brown also will be recommending a new US attorney to the president. The misbegotten plan to reappoint Steve Dettelbach to the post — he left in the last year of the Obama administration — we can chalk up to Dettelbach’s chutzpah, even though Brown himself showed poor judgment in bypassing all semblance of process.

The test for Brown

Sen. Brown is scheduled to meet this week with representatives of the Norman S. Minor Bar Association, Greater Cleveland’s black bar group, to discuss the openings. His office agreed to the meeting after receiving this open letter from NSMBA.

U. S. Senator Sherrod Brown [D-OH]

The nomination process will surely test Brown’s connection to his African American constituency. The gravelly voiced politician says the right things most of the time, but his articulation of the struggles of black folks never seems as genuine or passionate as his identification with the white working class. His nexus to the black community seems more calculated than organic, more transactional than relational.

Black people have always had to study white folk as a matter of survival. When a white man’s whim could determine whether you got a job, had a roof over your head, or even continued to breathe, you had better know his moods and what tripped them. I have often sensed the unease of Cuyahoga County Executive Armond Budish, for example, around black people. But I have no doubt as to his genuine affection for Congresswoman Marcia Fudge. I’ve seen them with their heads together, huddling almost like teenagers.

Not so with Ohio’s senior senator. The entourage that always assembles quickly to defend him whenever his liberal bona fides are questioned will avail him naught as he makes his crucial recommendations to a President whose connection to black people is palpable because it is authentic.

I’ll be uncharacteristically blunt. It will not be morally or politically sufficient for Brown to recommend only one black person for the four vacancies before him in northeast Ohio (three judgeships and the US attorney position). Given Judge Oliver’s move to senior status, one out of four would merely perpetuate a status quo that has never been equitable or adequate.

To advance the cause of equity and inclusion in northeast Ohio, Brown must nominate at least two African American attorneys for these positions. That is not a big ask. History and fairness call for it at a moment when there is an abundant number of qualified applicants, and both the presidency and the Senate majority are in Democratic hands because black people mobilized to make in so in November and in this year’s special Georgia elections.

Here are just a quick half dozen and more of the highly qualified candidates Brown can consider:

Elected Officials

  • John Michael Ryan, judge, Cuyahoga County Juvenile Court
  • Anita Laster Mays, judge, Ohio 8th District Court of Appeals

Public Sector

  • Marlon Primes, assistant US attorney
  • Renée Tramble Richard, general counsel, Cuyahoga Community College
  • Charles E. Fleming, public defender, Federal
  • Russell Tye II, public defender, Cuyahoga County

Private Sector

We single out for special note the current Cleveland safety director, Karrie Howard, as a prime candidate for either US attorney or federal district court judge. Howard checks every box: Former Marine, Judge Advocate General in the US Air Force reserves; former chief police chief prosecutor, former assistant US attorney.

We understand most if not all of these attorneys have applied for at least one of these positions. We are quite certain there are other highly qualified black candidates as well.

To quote again from Judge Higginbotham’s argument regarding an inclusive judiciary:

 "… pluralism does not absolutely and forever guarantee an effective and fair judiciary. Nothing really does. However, pluralism is a sine qua non in building a court that is both substantively excellent and respected by the general population. In other words, judicial pluralism breeds judicial legitimacy. Judicial homogeneity, by contrast, is more often than not a deterrent to, rather than a promoter of, equal justice for all."

If Sen. Brown fails to meet this moment in NE Ohio, he dare not speak of racial equity or inclusion again. Any fewer than two nominees will be understood as validation that the old boys club is still intact.

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[1] https://www.nytimes.com/1992/07/29/opinion/the-case-of-the-missing-black-judges.html

 

RELATED: opinion piece by Judge Ronald B. Adrine. 

UPDATED: 2021.0307 @ 1700.