Judge Blasts Clinton Record on Court Diversity

Speaking to a San Francisco civil rights group commemorating Rev. Martin Luther King Jr.’s birthday, a liberal federal judge on Thursday blasted President Clinton for failing to nominate a single African American to the 9th Circuit Court of Appeals, which covers nine western states, including California.

Circuit Judge Stephen Reinhardt of Los Angeles also criticized the president for being so lax in nominating a Latino to the 9th Circuit that by the time U.S. District Judge Richard Paez’ name was submitted to the Senate last year it was too late for him to get confirmed.

“I cannot fail to note on this day, at this place, that for the first time in a generation, my court, the largest federal court in the land, has not a single black or Latino judge among its active members,” Reinhardt told the San Francisco Lawyers’ Committee for Civil Rights.

Reinhardt said Clinton’s failure to nominate a single black to the 9th Circuit was especially disturbing because there was a particularly well-qualified candidate--Thelton Henderson, the chief judge of the U.S. District Court in San Francisco, whom he described as a “shining judicial star.”

Henderson is the judge who in December issued a preliminary injunction blocking the enforcement of Proposition 209, the anti-affirmative action ballot measure passed by 54% of California voters last year. An appeal of Henderson’s ruling is pending at the 9th Circuit.

Reinhardt made no direct comment on 209. However, he made several statements critical of affirmative action foes and he declared that individuals who claimed during the recent campaign that King would have favored 209 were guilty of “arrant political hypocrisy.

“Martin Luther King did not believe that his objectives would be achieved with a snap of the fingers,” Reinhardt said. “He knew that special measures would be required to bring about the ultimate state of colorblindness and that economic, social and racial equality would come to pass only through the use of specific amelioratory practices, including various forms of special help that would provide the necessary assistance to a racial group severely hampered by past discrimination and injustice.”

Reinhardt acknowledged that there is an African American currently serving on the 9th Circuit--Cecil F. Poole, who became a senior judge with a lightened caseload last January. But he said, “a different president would have understood . . . that there should be and is no rule that there can be only one black at a time on our court--and that following such a rule is morally wrong.”

The 9th Circuit is allotted 28 active judgeships; there are eight vacancies. Thus far, Clinton has nominated three judges who have been confirmed by the Senate. He also nominated three judges whose confirmation was not completed; they will be renominated this term.

“In fairness,” Reinhardt said, “President Clinton’s overall record with respect to diversity is obviously better than it is in the case of our court.” But the judge added that Clinton had appointed four black appeals court judges, compared to nine by President Carter, who tapped Reinhardt for the federal bench in 1980. Clinton has appointed one Asian American, Wallace Tashima, to the 9th Circuit. The White House did not return calls seeking comment.

This is hardly the first time that Reinhardt has criticized a president. In 1992, he lambasted presidents Reagan and Bush, noting that each had appointed only one black to the federal bench.

Although Reinhardt’s latest remarks were particularly strong for a federal judge, New York University law professor Stephen Gillers, an expert on judicial conduct, said they were well within the realm of what is appropriate for a judge.

“Judge Reinhardt has a legitimate interest in diversity on the bench,” Gillers said. “The president is the only appointing authority. Measured criticism of the president’s failure to diversify the 9th Circuit is fully within Reinhardt’s judicial role.”

Gillers also saw no problem with Reinhardt’s comments on affirmative action. He said that neither “praising the judge who is handling the Proposition 209 case” nor “endorsing affirmative action in general shows prejudgment of the particular issues in that case by Reinhardt.” Gillers noted that Supreme Court Justice Antonin Scalia had made a scathing speech last year about physician-assisted suicide and just last week was on the bench when the court considered appeals on that issue.