U.S. courts of Western NC have had only white male judges for 150 years. Is that changing?
This month, President Joe Biden and the U.S. Senate made Supreme Court history. Now it may be the Western District of North Carolina’s turn.
The 150-year-old federal court district, which stretches from east of Charlotte to the Tennessee and Virginia state lines, has never had a woman or a person of color serve as a trial judge. While other federal court districts in North Carolina and across the Southeast have added racial and gender diversity to their benches, the Western District’s “Article III” judges have remained exclusively white and male dating back to 1872.
Biden now has an opportunity to change that.
In February, U.S. District Judge Max Cogburn of Asheville announced that he intends to move to senior status, which would allow him to carry a lighter case load and would create a vacancy on the Western District bench.
Cogburn, who was nominated by Barack Obama, apparently added a caveat to his announcement: The judge said he will give up his seat only if Biden’s nominee — almost certainly a Democrat — is approved by the U.S. Senate. Otherwise he will remain in his job, according to several people familiar with Cogburn’s plans but who asked not to be identified because they were not authorized to speak about them.
Earlier this month, Ketanji Brown Jackson became the first Black woman approved for a seat on the U.S. Supreme Court.
The choice of Cogburn’s replacement also could prove historic. The country is divided into 94 federal court districts. The Western District of North Carolina is one of only four that has never had a woman or person of color serve as an Article III judge. The others: Idaho, North Dakota and the Eastern District of Oklahoma.
The 32 counties of the Western District are home to more than 3 million people, including the large and diverse urban areas of Charlotte, Asheville, Gastonia and Monroe. Veteran lawyers who practice here say it’s time for the local federal bench to look more like the people it serves.
“Lord yes, it’s important,” said Charlotte attorney James Ferguson, for decades one of North Carolina’s most prominent Black attorneys.
“It’s one thing if we hadn’t had any qualified candidates. But for many years, we’ve had many African-American lawyers, highly qualified, who have never even been thought about for such a position. Now at least, people are talking about them. People, both black and white, realize how important it is to have all segments of our society represented on the federal bench. For the first time there is serious talk about submitting their names to the president.”
The field of rumored candidates is professionally varied, ranging from two Mecklenburg County judges, to a U.S. magistrate, prominent Charlotte and Asheville attorneys, a top federal prosecutor and a public defender. It also is diverse in terms of race, gender and sexual orientation.
Veteran Charlotte trial attorneys Claire Rauscher and Chris Fialko, both white, echoed Ferguson’s sentiment. Rauscher, former head of the district’s Federal Public Defender’s Office, called it “highly significant” for the federal bench “to reflect the composition of the community.”
Fialko said it would be “healthy” for the Western District to add a judge “with a different perspective and life experience.”
“To be blunt, I’m hoping the nominee is a minority who has not been a career prosecutor,” he said.
Four of the five full-time Western District trial judges were either U.S. attorneys or spent part of their careers as federal prosecutors. They operate one of the staunchest law-and-order federal court districts in the country.
In fiscal 2019, the mean prison sentence here was 55% higher than the national figure, according to the U.S. Sentencing Commission. The district’s rate of pretrial detention was the fourth highest in the country. In 2020, the Western District judges ranked last in their rate of compassionate releases granted to inmates for COVID-19 or other reasons.
Biden, by many accounts, has submitted the most diverse list of judicial nominees in U.S. history, including the first Muslim-American judge, the first LGBTQ woman to serve on a federal appeals court and, of course, Jackson. In a break from the norm, about 30% of Biden’s judicial nominees — including Jackson — have public-defender backgrounds.
Election year
Federal court appointments, which are lifetime and ostensibly non-partisan, have given rise to some of the most bitter partisan political fights in the country.
Up to now, 59 of Biden’s 83 judicial nominees have been approved by the U.S. Senate. According to Ballotpedia, the federal courts had 72 Article III vacancies as of March with only 19 pending nominations.
Both Houses of Congress are up for grabs in November. Should Republicans regain the Senate, Biden’s choices for court seats face a far more uncertain path, adding urgency to the timing of his Western District choice. In the end, the state’s Democratic congressional delegation will send three names to the White House for consideration.
Many expect Democratic Congresswoman Alma Adams of Charlotte to play a major role in the selection of the nominee. The Observer contacted her office Tuesday about the judicial opening but had not received a response as of Wednesday morning.
In an added complication, North Carolina has two Republican U.S. senators, Thom Tillis, who was re-elected in 2020 to a six-year term, and Richard Burr, who will leave office at year’s end. As part of Washington tradition, the White House consults with a state’s senators before choosing a judicial nominee.
Carl Tobias, a University of Richmond law professor who follows N.C. politics, says he expects the Biden administration to work closely with Burr and Tillis, who have shown a willingness to cooperate with the White House on some matters, to find a mutually acceptable nominee.
“The timing may be an issue, as the midterms are looming,” Tobias said Wednesday. “But there is time to nominate and confirm before the elections, although after Labor Day pressure will increase in Congress to adjourn to campaign.”
Tillis spokesman Adam Webb sounded a diplomatic tone on Tuesday.
“Senator Tillis plans to work with Senator Burr and the White House to help select the best candidate to serve the people of the Western District of North Carolina,” Webb said. “He looks forward to this process and ensuring that the next District Court judge is nominated and confirmed in a timely manner.”
This story was originally published April 13, 2022 at 10:35 AM.
