The Rice Firm, LLC

“The Birmingham Problem”

As the nomination of Brett Kavanaugh receives honorable mention in the packed daily news cycle, little attention has been placed on the decades-long strategy employed by GOP lawmakers and pundits. The Republican-led Senate has confirmed judicial nominees in record numbers to fill vacancies in the federal court system, and is making it a priority to confirm judges over all other appointed officials. Why is this important? The vast majority of these confirmations are young to middle-aged conservative white men, who will shape the direction of the nation’s federal laws at every level for decades to come. The next presidential election cannot undo what is currently being done in the federal courts.

The judiciary in Birmingham, Alabama, the political and economic center of Jefferson County, represents a direct contrast to the federal system. Judges in Alabama are elected, and in Jefferson County, minority judges make up almost 60% of the judiciary, which makes sense representationally given that Birmingham in 72% African American. In fact, the circuit court and each sub-division is presided over by a judge of color. African American women compromise almost 70% of the minority representation on the bench. If every Democratic judicial nominee prevails in the November general election, then twenty-eight of the thirty-nine judicial seats will be occupied by African American judges. To be clear, this is not an assault on non-African American judges. There are many non-African American judges in Jefferson County that are fair and impartial so the problem isn’t with any individual judges. The aim here is to address the systemic issues and the historic disparities.

While many people think that diversity in the courts is a net positive and results in more fair results in the court system, there are those who are opposed to the high numbers of minority judges in Jefferson County. To those hostile to the notion of a majority-minority bench, the phenomenon in Jefferson County is cause for alarm. In the halls of the State legislature and among certain ideological circles outside — and to some extent inside — Jefferson County, the diversity on the Jefferson County bench is openly referred to as the “Birmingham problem.” Despite the fact that minority lawyers were effectively barred from serving as judges until after the civil rights movement, and that outside of Jefferson County minority judges are virtually nonexistent, state and county lawmakers have been working around the clock to reduce the number of minority judges in Jefferson County.

In fact, the crusade to turn back time and color on the Jefferson County bench transcends political party, gender, and socio-economic status. The Jefferson County Democratic party has been plagued with division as result of party leadership discouraging African American lawyers from running against white Democrats, or even white Republicans for that matter. Every election cycle, there is an effort by the Democratic leadership to insulate white Democratic judges from primary challenges by African Americans by designating white judicial seats. African American attorneys are often encouraged in some form to run against an incumbent African American judge, to wait their turn, or not to seek election at all.

The desire to control the minority representation on the bench transcends party. However, the Republican response to the “Birmingham problem” has been swift and fierce. In March of 2017, the Judicial Reallocation Bill was signed into law. The entire purpose of the law is to reduce the number of judges in Jefferson County by giving those seats to other counties with no minority representation on the bench. Citizens of Birmingham, is this the future you want for a judiciary that is supposed to reflect the people it serves? Statistics consistently show that communities of color continue to receive harsher penalties for the same crimes as their white counterparts. Given the fact that justice in not administered equally, actively reducing the representation of judges of color in Jefferson County leaves already vulnerable populations even more vulnerable and represents a step backward in the continuing arc towards justice. Until the day arrives where equality in judicial outcomes is standard across the courts, Alabama should not take steps backward.

Open Letter by Richard A. Rice, Public Interest Attorney