Defending our democracy means protecting our courts
This year will test the strength of our democracy as none other in modern history. Congress will decide whether to remove a sitting president for allegedly sacrificing national interests to win an election. The most consequential presidential contest of our lifetime will determine whether President Trump’s tenure in the White House will end. Without a Voting Rights Act at full strength, voter suppression in various forms already is springing up — and it’s only January.
The federal courts play a key role in defining the contours of our democracy. For this reason, we must ensure that federal judges are free from bias, beyond reproach, and reflect the diversity of the people they serve. Trump’s judicial appointments have failed miserably on all counts. Most nominees have long records of hostility to civil rights. A record number have been rated “unqualified.” They are the least diverse group of appointees in modern history.
We must insist that our federal judges ensure equal participation in our democracy required by voting rights laws and the Constitution. There is no question that Trump has used judicial appointments as a potent weapon in his administration’s broad-based assault on voting rights. Last year, the NAACP issued a report chronicling the egregious records of numerous nominees who defended or enabled voter suppression. Their appointments to appellate and district courts that will decide pivotal voting rights and election cases is no accident. This is as intentional as it gets.
Trump has appointed a record number of judges — 50 — to powerful circuit courts where most case law is decided. He installed Judge Andrew Brasher on Alabama’s federal trial court only eight months ago. But he’s not done: He recently nominated Brasher to the U.S. Court of Appeals for the 11th Circuit. Brasher poses the clearest threat to voting rights of any nominee to date. His nomination to the appeals court should alarm everyone who cares about the fundamental right to vote, which the Supreme Court has called “preservative of all rights.”
This is not just any court. The 11th Circuit covers Alabama, Georgia and Florida. Within its jurisdiction resides the highest percentage of people of color of any circuit in the country. Since the Voting Rights Act was enacted in 1965, African Americans in these states have borne an outsized burden in struggling to exercise the right to vote. One only has to recall the 2018 gubernatorial election in Georgia to understand that the presence or absence of voting rights can determine the outcome of an election.
Brasher is from Alabama, known as the birthplace of voting rights. But he has defined his career by excluding communities of color from political participation. As solicitor general of Alabama, he took the most extreme position against voting rights in every case in which he was involved. This record alone makes him patently unfit for judicial service.
It is difficult to imagine more hostility to voting rights. Brasher argued to eviscerate the Voting Rights Act in Shelby County v. Holder, which came from Alabama. He said that its pre-clearance provision — requiring jurisdictions with a history of voting discrimination to pre-clear voting changes — undermined states’ rights and allowed the Department of Justice “to discriminate between covered States.” Brasher also defended Alabama’s race-based redistricting before the Supreme Court and lost, which is quite a feat. He took the absurd position that the pre-clearance provision (which he helped to gut) required racial gerrymandering; the federal judge hearing the case called this “a cruel irony.” The Supreme Court rejected Brasher’s position. So did the conservative 11th Circuit judge, who ruled that 12 of Alabama’s legislative districts were unconstitutional because the legislature relied too heavily on race in drawing their boundaries.
There’s more. Brasher sought to prevent previously incarcerated persons from exercising their voting rights in a state notorious for discriminatory laws that disenfranchise all those convicted of a felony involving moral turpitude. He filed an amicus brief defending a ballot initiative in another state requiring proof of citizenship when registering to vote. He initiated an effort to deny non-citizens representation in congressional apportionment and electoral college determinations.
And there is insult added to the injury. Astonishingly, Brasher is nominated to the seat once held by iconic civil rights judge Frank Johnson, who paved the way for Selma marchers to safely cross the Edmund Pettus Bridge, who desegregated Montgomery’s buses after the Boycott, and who enfranchised Black voters in the historic Gomillion v. Lightfoot ruling. It is unfathomable that Brasher could sit in Judge Johnson’s seat.
Let’s be clear. It’s 2020 and the stakes have never been higher. Voting rights are under attack as never before. We must demand that federal courts perform their historic, impartial role in protecting the franchise. The last thing communities of color in the South need is a judge like Andrew Brasher on their circuit court. We need to fight this nomination with everything we’ve got. Nothing is more important.
Leon W. Russell is chairman of the board of directors of the NAACP.
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