By Leslie Proll
Director, NAACP Legal Defense Fund, Washington DC office

The election of President Barack Obama brings not just hope and change but vast opportunities, including the ability to shape the federal judiciary for years to come. Much of the election debate on judicial nominations concerned the next President’s ability to fill possible vacancies on the Supreme Court. While this prospect is critically important, our new President’s influence on the lower courts deserves just as much attention.

There is no question that President Obama will be able to impact the composition of our nation’s federal circuit and district courts. He will begin his term in January with over 35 vacancies in federal courts around the country. In four years, a president can typically fill between 150 and 200 such vacancies. With the Supreme Court taking fewer cases per year, these are the courts which often have the final say on important cases involving constitutional and civil rights. Their decisions on workers’ rights, the environment, consumer protections and criminal justice issues ultimately affect all of our lives.

President Obama should seize this opportunity to nominate judges who reflect the rich diversity of our nation. Diversity here can be broadly defined to include not only racial and ethnic representation on our federal courts but also consideration of nominees with varied backgrounds and life experiences. Just as President Bill Clinton said about his appointments to his Cabinet, it is just as important to have to have a federal bench that looks like America. Attention to diversity in court appointments can only help to inspire public confidence and trust in our judicial system.

Unfortunately, the Bush Administration did not make diversity a priority in judicial nominations. Although President George W. Bush appointed 324 judges, only 25 are African-American. This is in stark contrast to nominations by at least two prior Administrations. In two terms, President Clinton appointed 77 African Americans to the federal bench, out of a total of 367 appointments. Three decades ago, President Jimmy Carter appointed more African-American judges in just one term than President Bush has appointed in two terms. Thirty-seven of President Carter’s 258 nominations were African-American.

The situation is more egregious when considering another phenomenon now occurring in the federal judiciary. Many appointees by previous Administrations who contributed to the diversity on their courts are now retiring or are eligible for retirement. But there have been few nominees to take their place. As a result, federal courts around the country are experiencing a real retreat in terms of diversity.

A case in point comes from Alabama. Two weeks ago, Judge U.W. Clemon of the U.S. District Court for the Northern District of Alabama announced that, after 28 years, he will soon retire from the federal bench. Prior to serving on the bench, Judge Clemon was a renowned Birmingham civil rights attorney and one of the first two African Americans to be elected to the Alabama Senate since Reconstruction. He is nothing short of legendary in Alabama and beyond.

Judge Clemon’s announcement is significant for another reason. Appointed in 1980 by President Carter, he is Alabama’s first African-American federal judge. Today, he is only one of two African-American federal judges in the State. Alabama has a total of 14 federal judges. The other African-American judge is Judge Myron H. Thompson of the Middle District of Alabama. According to retirement eligibility standards for federal judges, Judge Thompson too is eligible for “senior status” or retirement, although he has given no indication he intends to leave the bench.

With their combined fifty-six years of service in the federal judiciary, both Judge Clemon and Judge Thompson deserve to retire whenever they choose. But these developments pose a real threat to the racial diversity on Alabama’s federal bench. Alabama has an African-American population of twenty-six percent. With one African-American judge retiring and the other eligible for retirement, Alabama could face an all-White federal judiciary in the very near future. A complete absence of diversity on Alabama ’s federal bench is unacceptable in this day and age.

For his part, President Bush did nothing to prepare for this eventuality. In two terms, his administration had nine opportunities to nominate an African American to the federal bench in Alabama. There were four vacancies in the Northern District, two vacancies in the Middle District and three vacancies in the Southern District. In each instance, however, President Bush nominated a White person to fill the vacancy.

With the retirement of many of our country’s first African-American judges, Alabama’s bench is certainly not alone in facing new challenges on diversity. But it may very well be a good place for an Obama Administration to start.