Judicial elections in Alabama provide material for a bookshelf full of doctoral dissertations. They are notorious for their expense, their hyperpartisan contentiousness, and, since Karl Rove was brought into Alabama by the Business Council to steal Supreme Court elections, as producing a court system where out-of-state Fortune 500 companies and Republican officials never lose their cases. (Chief Justice Sue Bell Cobb is the sole Democrat among the 19 current appellate judges on the three appellate courts.) These problems have attracted the attention of well-meaning reformers in both parties. Efforts to reduce the temperature of judicial elections have been made by the Alabama State Bar, the Judicial Inquiry Commission, and even by the Supreme Court itself, in the form of campaign regulation. However, most of these efforts have run afoul of claims, most notably by Business Council Pod, former Justice Harold See, that such regulations abridge First Amendment free speech rights. (Oddly, the Republicans, professed champions of the Tenth Amendment and state sovereignty, invariably bring these actions in Federal courts.) Various legislative proposals for changing the selection process have floated around the Legislature, including nonpartisan elections, Missouri-style retention systems, and appointment systems. In a predictable turn of events, Democrats, who opposed selection reform when we dominated elections, became the proponents of change. The Republicans, in turn, have become newfound supporters of a popularly elected judiciary.
Whatever the relative merits of these reform proposals - and they are beyond the scope of this post - it wouldn't be Alabama if one certain issue wasn't hiding behind the curtain, not getting its due attention, and begging to be addressed. That omnipresent issue is race. Because while there is a lone Democrat among those 19 appellate judges, there is not a single, solitary, black person - or any other person of color - among them. None. Zero. Zip. In a state, the population of which is 27% black.
Let me explore the ramifications of this with an example. A black defendant, charged with capital murder, who was tried and sentenced to death, and executed, in the urban centers of Mobile, Anniston, Gadsden, Huntsville, Decatur, Florence-Muscle Shoals, Dothan, or Auburn-Opelika, and appealed, would have been executed without appearing in front of a single judge of his own race until he appealed to the United States Supreme Court. Where his fellow black would be Clarence Thomas; not exactly a great comfort. (The lone exception would be in Huntsville, where the relatively unimportant preliminary hearing could have been - no guarantee - in front of District Judge Lynn Sherrod, who is black.) The same all-white judiciary would obtain in the suburban counties of Shelby and Baldwin, which have a combined population of over 361,000. There are no black circuit judges (who try murder cases) in any of the above cities and counties, and none on the Court of Criminal Appeals or the Alabama Supreme Court.
Now, many of these cities and counties are overwhelmingly white, and it's a little easier to see how a black judge could have trouble getting elected locally. I still have a problem with that, but that is one of the factors courts look at in determining whether elections are racially biased. But at the state level, there is no such excuse with a 27% black population.
A small history lesson is on order at this point. The situation was not always thus. Once upon a time, there was a black justice appointed to the Alabama Supreme Court, Oscar W. Adams, Jr. He was appointed in 1980 by - hold on to your chair - Governor Fob James. Adams, a Democrat, was elected to full terms in 1982 and 1988. When he retired during his second full term, then-Gov. Jim Folsom, Jr. appointed Justice Ralph Cook, who is also black, to the vacancy. Justice Cook was elected to a full term in 1994, but lost his seat to a Republican in 2000. Also losing his seat in the 2000 general election was black Justice John England, who had been appointed to a vacancy by Gov. Don Siegelman. (Siegelman later appointed England, the father of State Rep. Chris England, to his former position of circuit judge in Tuscaloosa, where the voters have wisely kept him.) Justice Adams's 1982 white primary opponent disgraced himself by blanketing predominantly white counties with a flyer containing photos of both himself and Justice Adams, with the legend, "COMPARE." (Supposedly, their qualifications. Yeah, right.) There has yet to be a black judge to assume a seat on an Alabama appellate court directly by election, without first being appointed, and enjoying the political and financial advantages of incumbency.
How does our track record compare with other Southern states? Not well at all. First, let's take a look at the most recent group photo of the Mississippi Supreme Court. And this is in a state whose Democratic Party is supposedly in even greater disarray than that of Alabama. Mississippi, which is 37% black, does elect its Supreme Court Justices by district, and the Court's lone black, Justice James E. Graves, Jr., is from the district with the largest black population percentage.
Looking in the other direction, we see the Georgia Supreme Court. (Chief Justice Leah Ward Sears, the black woman in the center of the Georgia photo, has retired since that photo was taken, and her replacement, appointed by GOP Governor Sonny Perdue, is white.) Georgia's population is 30% black. It elects its judges in nonpartisan elections, but the current black justices were all originally appointed by Democratic governors. Whether the Georgia court will follow in the footsteps of the Georgia Legislature in slowly being overrun by white Republicans remains to be seen, but Chief Justice Sears was able to retain her seat in her final election, in 2004, in which election the Georgia GOP retained legislative control.
OK, so the situation is horrible. What is to be done about it? If the Georgia precedent tells us anything, it seems that nonpartisan elections, while possibly commendable on other grounds, may not serve the long-term goal of racial equity. If Alabama's bleaching of its Supreme Court is simply a second-level consequence of its Republicanization, nonpartisan elections might work. However, racial polarization in the 2008 presidential race indicates that an identified black candidate still faces substantial hurdles to statewide electoral viability. It should probably be presumed that the Business Council and other conservative interests would make sure a black candidate, who was not a local version of Clarence Thomas, would be so identified.
The Mississippi example, using geographical districts, seems to be more promising, though the Alabama Supreme Court's current selection reform champion, Republican Justice Champ Lyons, is opposed to the idea. (Wonder why?) Neither proposal would require a constitutional amendment, as the Constitution of 1901 gives the Legislature broad authority to determine the number and qualifications of appellate judges. (Changing to an appointment or Missouri-plan system would require a constitutional amendment.) As a practical matter, the Court of Criminal Appeals and Court of Civil Appeals would have to be expanded from their current size of five judges each (the Supreme Court has nine) to assure racial diversity in elections by district. We have modest racial diversity in the Congressional delegation with seven districts (1/7). The State Board of Education has two blacks among its eight members elected by districts. (The Governor is an ex officio member.) Thus, expansion to nine judges would seem to be necessary to cause election by district to foster racial diversity. (Designers of appellate courts don't like even numbers, as tie votes make for legally awkward tie decisions.)
The only option other than electoral reform seems to be litigation under the Federal Voting Rights Act of 1965. Which has, in fact, been done. In the case of White v. Alabama, 74 F.3d 1058, 34 Fed.R.Serv.3d 281 (11th Cir. 1996), the plaintiffs had obtained a preliminary ruling that Alabama's appellate judicial selection was racially discriminatory, and the state had conditionally agreed to a settlement in which judicial vacancies would have to be filled by blacks by appointment, unless and until the electoral process produced racially diverse outcomes. For arcane legal and political reasons, including overconfidence engendered by Justice Cook's 1994 re-election, the plaintiffs dropped their claims in 1998. Which, for my money, teaches that when you have the serpent's head between your boot heel and the rock, you crush it. The trial judge in White was Myron Thompson, probably the most sympathetic Federal judge in Alabama to such a claim; future litigation could be problematic. However, it, along with litigation to secure racial diversity in the trial courts of many of our state's racially diverse urban centers, may be our only choice.