Poster, runaway slave advertisement for slave named Osborne, issued by Robert O. Grayson, Stevensburg, Virginia, October 14, 1854 courtesy of Phillip Sang Papers.
The integration of African-Americans into the federal judiciary represents a significant achievement for social equality and the law. As a result of the strides made by numerous pioneering African-Americans, some descendants of slaves now serve as arbiters of a legal system that had once denied their ancestors fundamental legal rights to life, liberty, and property.
One such legal pioneer was Macon B. Allen, the first African-American acknowledged to have gained admission to a state bar when he passed the examination for the Maine bar in 1844.1Allen learned the law as almost all aspiring lawyers did in this period: he read it in the office of a beneficent private attorney while working as this attorney's clerk. A year later, Allen would later gain admission to the Massachusetts bar.2 Three years after Allen entered the Maine bar, the Governor of Massachusetts appointed him a justice of the peace, making Allen the first African-American to serve in any judicial capacity.3 Robert Morris became the second African-American lawyer in the country4, and, in 1852, he became the second African-American judge when the Governor of Massachusetts appointed him to a county magistrate position, a more formal judicial position than justice of the peace.5
Significantly, most African-Americans were still slaves during this period, and many people resisted the notion of African-Americans as free citizens --much less as lawyers and judges. As far-fetched as the notion of an African-American bar and judiciary may have seemed at the time, Allen's and Morris's achievements were just the beginning of a long transformation from the injustices of the color bar to justices and judges drawn from a bar of color. In 1865, John Swett Rock of Massachusetts, a former physician, became the first African-American lawyer admitted to practice before the U.S. Supreme Court.7 Rock had abandoned his medical practice to study law in 1861. He also became the first African-American to be invited to the floor of Congress.8 In 1865, Jonathan Jasper Wright became the first African-American lawyer in Pennsylvania, and five years later, he became the first African-American to sit on any state supreme court when he served on the South Carolina Supreme Court until 1877.9
In 1873, John A. Moss became the first African-American judicial officer in the District of Columbia when he was appointed as justice of the peace by President Rutherford B. Hayes.10 Although justices of the peace are generally subordinate judicial positions in a municipality or a county, the District of Columbia is a federal district under the supervision of Congress, and thus Moss may have been the first African-American judicial officer employed by Congress. Moss, a graduate of Howard University Law School, was subsequently reappointed by Presidents James A. Garfield and Grover Cleveland.11 Robert H. Terrell became the first African-American appointed to any full judgeship position under the authority of the U.S. government when the District of Columbia courts were reorganized and Terrell became a judge on the newly formed Municipal Court of the District of Columbia in 1909.12 He served on that court until his death in 1925. Terrell was succeeded by another African-American lawyer, James Adlai Cobb, who served from 1926 until 1936. Cobb, in turn, was succeeded by yet another African-American attorney, Armond W. Scott.13 Two years after Terrell's initial appointment to the District of Columbia Municipal Court, William H. Lewis became the first African-American Assistant Attorney General in the U.S. Department of Justice.14
In 1937, William H. Hastie was appointed by President Franklin Delano Roosevelt to the District Court for the U.S. Virgin Islands.15 He became the first African-American to serve on any U.S. District Court; however, at the time, this position was not established under Article III of the U.S. Constitution and did not carry lifetime tenure.16 Hastie resigned from this position in 1939 and his immediate successor, Herman Moore, became the second African-American to serve on any U.S. District Court.
In 1945, President Truman appointed Irvin C. Mollison to the U.S. Customs Court. Judge Mollison earned his undergraduate and law degrees from the University of Chicago and was a member of the Illinois bar. In 1980, Congress enacted a statute that converted the U.S. Customs Court to the U.S. Court of International Trade and granted its judges with life tenure under Article III of the Constitution. Although this statutory shift in the court's structure occurred after Mollison left the bench, he is widely regarded as the first African-American to hold a judgeship of life-tenure stature.
In 1950, Judge Hastie returned to the judiciary when President Truman appointed him to the U.S. Court of Appeals for the Third Circuit; Hastie had initially served as a recess appointee to this court in 1949. He became the first African-American judge to serve on any U.S. Court of Appeals. In 1957, Scovel Richardson of Missouri joined Judge Mollison to become the second African-American judge on the U.S. Customs Court. A year later, Walter Gordon became the third African-American judge to serve on the U.S. District Court of the Virgin Islands.
Judge Charles E. Freeman swearing in Harold Washington as Mayor of Chicago, May, 1983 Photograph courtesy of Harold Washington Archives & Collections, Harold Washington Library Center
In the late 1950s and early 1960s, members of the National Bar Association (NBA) and the Cook County Bar Association (CCBA), including retired Judge Edward B. Toles of Chicago, actively lobbied for increased representation of African-Americans in the federal judiciary. That lobbying effort coincided with the 1960 presidential election and the growing civil rights movement. Toles, who was then president of the CCBA and chairman of the Committee on the Judiciary in the NBA, wrote several essays urging the appointment of more African-Americans to the federal judiciary, particularly in light of the growing number of African-American attorneys. In 1961, the CCBA submitted a list of seven attorneys for consideration as federal judges. One of the names on this list was James B. Parsons. Parsons, a former Assistant United States Attorney, had just won an election as a judge to the Superior Court of Cook County in November, 1960. On an early August morning in 1961, he received a momentous telephone call in his summer cottage in Michigan from President John F. Kennedy, who sought to appoint the young Cook County judge as the first African-American Article III U.S. District Court Judge with life tenure. A somewhat hesitant Parsons finally told Kennedy, "Mr. President, as a former Navy enlisted man to a former Navy officer, 'Aye, aye, sir.'" The President and Commander-in-Chief, reportedly responded "Carry on." Parsons sat as a judge in the U.S. District Court for the Northern District of Illinois for more than 31 years, including six years as the first African-American Chief Judge from 1975 to 1981.17
African American federal judges currently on the bench in Chicago, 2003 Left to right: Honorable Arlander Keys, United States Magistrate Judge; Honorable Ann Claire Williams, Seventh Circuit, United States Court of Appeals; Honorable Blanche Manning, United States District Court, Northern District of Illinois; Honorable Jacqueline Cox, United States Bankruptcy Court; Honorable David Coar, United States District Court, Northern District of Illinois; Not shown: William J. Hibbler, United States District Court, Northern District of Illinois Just the Beginning Foundation Archives 224
Less than a month after Parsons's appointment, Wade H. McCree, Jr., became the second African-American Article III U.S. District Court judge when he was appointed to the U.S. District Court for the Eastern District of Michigan. Thurgood Marshall became the second African-American judge to sit on the U.S. Court of Appeals when he was given a recess appointment to the Second Circuit in October 1961. Marshall was later confirmed for a full appointment in September 1962. At that time, there had only been two African-American Article III U.S. District Court judges appointed (Parsons and McCree), two African-American U.S. Court of Appeals judges (Hastie and Marshall), two U.S. Customs Court judges (Mollison and Richardson) 18, and no African-American U.S. Supreme Court Justices.
These numbers increased considerably under the administration of President Lyndon B. Johnson, who was partly responding to the civil rights movement's call for greater African-American representation in all branches of government. Between 1964 and 1967, Johnson appointed one African-American to the U.S. Customs Court and seven African-Americans to U.S. District Courts, including Constance Baker Motley, the first African-American woman ever to serve in the federal judiciary. Johnson also elevated two African-American U.S. District Court judges to seats on the U.S. Court of Appeals, and most notably appointed the first African-American to sit on the U.S. Supreme Court, Thurgood Marshall.
Martin Luther King, Jr., Constance B. Motley, and William Kuntsler, Albany, Georgia, July 25, 1962. Just the Beginning Foundation Archives 017
President Nixon appointed six African-Americans to serve as U.S. District Court judges, including David W. Williams, the first African-American Article III judge west of the Mississippi, and Robert M. Duncan, the first African-American Article III judge in Ohio. President Ford likewise appointed three African-American U.S. District Court judges including Cecil F. Poole, the first African-American U.S. District Court judge for the
Northern District of California.
Yet, despite progress in appointments, there were also setbacks of sorts. For example, after Thurgood Marshall was appointed to the U.S. Supreme Court in August 1967, all subsequent African-American federal judges over the next ten years were appointed to U.S. District Court positions. This trend ended in 1977 when President Carter elevated Judge A. Leon Higginbotham Jr. from the U.S. District Court for Pennsylvania, Eastern District, to the U.S. Court of Appeals for the Third Circuit. In fact, President Carter appointed or elevated more African-Americans to Article III judicial positions during his term in office (1977-1981) than all previous Presidents combined. President Carter appointed or elevated nine African-Americans to the U.S. Court of Appeals, including six from outside of the federal judiciary. He appointed the first African-American judges to the U. S. Court of Appeals for the Eighth (Theodore McMillan), Ninth (J. Jerome Farris), and Eleventh Circuits (Joseph W. Hatchett). During this period, 28 African-Americans became U.S. District Court judges; many of these were the first African-American judges appointed in their states, such as Texas (Gabrielle Kirk McDonald), Louisiana (Robert F. Collins), Arkansas (George F. Howard), Missouri (Clyde S. Cahill), Tennessee (Odell Horton), Alabama (Myron H. Thompson), Florida (Alcee L. Hastings), Georgia (Horace T. Ward), North Carolina (Richard C. Erwin), Maryland (Joseph C. Howard), and New Jersey (Anne E. Thompson).
Seven African-American female judges were appointed during this period, including the first African-American female U.S. District Court judges in Michigan (Anna Diggs Taylor), Texas (Gabrielle Kirk McDonald), New Jersey (Anne E. Thompson), and California (Consuelo B. Marshall). Judge McDonald was also the first African-American U.S. District Court judge, male or female, to be appointed in Texas, as was Judge Thompson in New Jersey. Another pioneering African-American woman, Amalya L. Kearse, became the first African-American female judge on the U.S. Court of Appeals when she joined the Second Circuit.
Honorable Ann Claire Williams United States Courts of Appeals for the Seventh Circuit
President Reagan appointed seven African-American Article III judges, six to the U.S. District Court positions and one, Lawrence W. Pierce, to the U.S. Court of Appeals for the Second Circuit. Judge Pierce became the second African-American appointed to the Second Circuit in less than three years (after Judge Kearse in June, 1979). The District Court appointees included Ann C. Williams, the first African-American female U.S. District Court judge in Illinois; Henry T. Wingate, the first African-American U.S. District Court judge in Mississippi; and James R. Spencer, the first African-American U.S. District Court judge in Virginia.
The 1990's ushered in a new wave of African-Americans appointed to Article III judicial positions. President George H.W. Bush started by making 13 appointments or elevations of these judges between 1990 and 1992. His first such appointment was Clarence Thomas to the U.S. Court of Appeals for the D.C. Circuit in March, 1990. In 1991, President Bush appointed Judge Thomas as the second African-American to serve as Associate Justice to the U.S. Supreme Court replacing Thurgood Marshall, who retired earlier that year. Another African-American judge appointed and then elevated by President Bush was Timothy Lewis. Judge Lewis was first appointed as a U.S. District Court judge for the Western District of Pennsylvania in June, 1991 and then elevated to his current position on the U.S. Court of Appeals for the Third Circuit in October, 1992. Three judges became the first African-American U.S. District Court judges in their districts: Fernando J. Gaitan, Western District of Missouri, Joe Billy McDade, Central District of Illinois, and Garland E. Burrell, Jr., Eastern District of California. Likewise, two women became the first African-American female U.S. District Court judges in their districts. In June, 1991 Saundra Brown Armstrong became the first such judge for the Northern District of California, as did Carol Jackson for the Eastern District of Missouri in August, 1992.
In September, 1992, when the Just The Beginning Foundation held its first Celebration of the Integration of the Federal Judiciary in Chicago, some attendees worried that the future might yield a shrinking number of African-American Article III judges, particularly at the appellate level, as current judges left active service in the federal judiciary and fewer judges entered the ranks to replace them. Judge Harry Edwards of the U.S. Court of Appeals for the D.C. Circuit said, "It's irrefutable that the number of appointments of African-Americans has gone down. The distressing thing is that the number of potentially qualified people has gone up."19 In his remarks to those assembled for the Just The Beginning celebration, Judge A. Leon Higginbotham also lamented this trend.
Shortly after the first JTBF celebration, President Clinton was elected, beginning a new era of increased diversity in judicial appointments to the federal courts. He appointed 46 African-Americans to Article III judicial positions, substantially increasing the ranks of African-American jurists. President Clinton's appointments include Roger Gregory, the first African-American to serve on the Fourth Circuit, Judith W. Rogers, the second African-American female judge ever appointed to the U.S. Court of Appeals, and the first one appointed to the D.C. Circuit. Several of President Clinton's appointees were the first African-American U.S. District Court judges in their states, including Oregon (Ancer Haggerty), Colorado (Wiley Daniel), Oklahoma (Vicki Miles-LaGrange), Minnesota (Michael Davis), and Connecticut (Alvin Thompson). President Clinton also appointed fifteen African-American female judges to Article III positions, more than any other President.20 Despite several opportunities, however, President Clinton did not appoint an African-American to the Supreme Court.
George W. Bush became President in 2001. During his first term, he appointed 14 African-Americans to Article III judicial positions, including Allison Duncan, the first African-American woman to serve on the Fourth Circuit. In his second term he appointed Janice Rogers Brown to the D.C. Circuit Court of Appeals, making her the second African-American woman appointed to that position.
To truly appreciate the accomplishments of African-Americans in the federal judiciary, one need only look back a century ago to the U.S. Supreme Court's 8-1 decision in Plessy v. Ferguson, 163 U.S. 537 (1896), which condoned, if not endorsed, state-sponsored segregation. The sole dissenter in that case, Justice John Harlan, said with prescience:
"The destinies of the two races [African-American and White] in this country are indissolubly linked together and the interests of both require that the common government of all shall not permit the seeds of race hate to be planted under the sanction of law."
One hundred years after the Supreme Court's decision in Plessy, over 100 African-Americans have occupied Article III judicial positions from the U.S. District Court to the U.S. Supreme Court and from California to Massachusetts. These judges and the opinions that they have rendered have become an indelible part of American law. Although the future representation of African-Americans in the federal judiciary is uncertain, the accomplishments of past and present African-American federal judges are undeniably clear. As Justice Thurgood Marshall remarked:
"African-American lawyers have played a unique role in American history. Imbued with respect for the rule of law and the responsibility that such belief engenders, these lawyers have used their legal training not only to be masterful technicians but to force the legal system to live up to its creed: the promise of equal justice under law."
The same is true for African-American judges, and . . . it is only just the beginning.21
- J. Clay Smith, Emancipation: The Making of the Black Lawyer, 1844-1944 93-4 (1993).
- Id. at 94.
- Id. at 96.
- Id. at 96.
- Id. at 99.
- The tune was apparently called "Ethiopian Melodies" (1848). Smith, supra note 1, 2.
- Id. at 100-2.
- Id. at 165.
- Id. at 130.
- Id. at 130, 163, 167-68 n.39.
- Edward B. Toles, Negro Federal Judges, 1863-1960 reprinted in The Just the Beginning Committee, A Celebration of the Integration of the Federal Judiciary 11-12 (1992); Smith, note 1 supra, at 138 & n.104.
- Smith note 1 supra at 138-139; Toles reprinted in Just the Beginning, 22.
- Smith note 1 supra, 106-7.
- James Warren, A Time to Rejoice, and Judge the Past, Chicago Tribune, September 23, 1992,Tempo sec., at 1.
- Toles, reprinted in Just the Beginning, 12; Just the Beginning, 22.
- Transcripts of the first panel discussion from the Just the Beginning Celebration, September 19, 1992 (available from the Just the Beginning Foundation).
- Mollisondied on May 5, 1962, so Scovel Richardson was the only sitting African-American U.S. Customs Court judge at the time.
- Randall Samborn, Exhibit A: Time To Reminisce: Historic Gathering of Black Judiciary, National LawJournal, October 5, 1992, at 8.
- Only twenty-one African-American women have been appointed to Article III judicial positions in the history of the country.
- ThurgoodMarshall Foreword to J. Clay Smith, Emancipation: The Making of the Black Lawyer,1844-1944 at xi (1993).