The most important thing a president can do
President Donald Trump released a batch of names last week that he says are under consideration for a Supreme Court appointment, should he serve a second term.
The additions include Republican Senators Ted Cruz representing Texas, Tom Cotton of Arkansas, and Josh Hawley of Missouri. The list of 20, a roundup of conservative favorites, also includes appellate judges, a state attorney general, and a deputy to the president.
The timing is important. Both Republicans and Democrats are telegraphing potential court appointments as a way to excite voters. (Or strike fear in voters with the list from the other side.)
Although, as the Associated Press recently noted, the Democrats were largely silent at their convention about potential picks.
There was a visual of a younger Ruth Bader Gingsberg, a brief reference to the court by Senate Democratic leader Chuck Schumer of New York, and a mention of it by Ayesha Curry in a segment with NBA star Stephen Curry and their two daughters. But neither Democratic presidential nominee Joe Biden, nor vice presidential running mate Kamala Harris said a word about the high court in their acceptance speeches.
During the primary campaign, Biden said he would nominate a Black woman to the court. Two names are often talked about in that context are California Supreme Court Justice Leondra Kruger and U.S. District Judge Ketanji Brown Jackson in Washington, D.C.
The Trump campaign talks about the court a lot.
“The most important thing a president can do is the appointment of federal judges and Supreme Court justices," Trump said at a recent campaign stop in Yuma, Arizona.
The next president will likely appoint at least two members to the court. Of the nine associate justices, two are in their 80s, Ruth Bader Ginsberg and Stephen Breyer and two more are in their 70s, Samuel Alito and Clarence Thomas.
What makes a good choice? Historically most justices have either judicial experience or extraordinary political connections. Today’s appointments are younger. They are more likely to be clear about their take on issues ranging from abortion rights to how much power the executive branch wields.
“Trump had pledged to appoint conservative judges, and he has respected that promise,” wrote Carl Tobias, the Williams Chair in Law at the University of Richmond in a July op-ed in The Hill. “However, this achievement has imposed numerous costs on the federal courts … Republicans have also decreased ideological, experiential, ethnic, gender and sexual orientation diversity on the federal courts. For example, Trump has nominated no African American to an appellate court opening.”
There are 870 Article III judges, nine on the Supreme Court, 179 on the courts of appeals, 673 for the district courts and nine on the Court of International Trade.
This is where it gets interesting because so much the debate centers on ideology. But about representation? And what about history?
The Supreme Court has played such a unique role in federal-tribal relations, even defining the scope of that association, yet in more than two centuries there has never been a voice representing Indigenous communities. There have only been a handful of district court appointments and no Native American has been confirmed to serve at the appellate court level.
Yet there have always been Native American lawyers who could have served; the talent has always been there. It's possible the next round of appointments could make history because so many Native American lawyers have the same or better legal experience than other appointments to the courts.
"Even over the past few years we have always had really great well qualified attorneys," said Joel West Williams, Cherokee Nation, a senior attorney with Native American Rights Fund in Washington. "The biggest thing that has changed is they have worked their way into positions such as state supreme court justice — and that is a prime position from which to be selected."
There are three Native Americans actively serving in the federal courts. President Barack Obama appointed U.S. District Judge Diane Humetewa, Hopi, in Arizona, and U.S. District Judge Derrick Watson, Native Hawaiian, in Hawaii. President Trump appointed U.S. District Judge Ada Elene Brown, Choctaw, in the Northern District of Texas.
There are three Native Americans now serving on state supreme courts, Justice Rachel Montoya-Lewis, Isleta Pueblo, in Washington, Ann McKeig, White Earth, and in Oklahoma, Dustin Rowe, Chickasaw.
Sandra Day O’Connor was appointed to the Supreme Court when she was a judge on the Arizona State Court of Appeals.
There are other candidates who should be on any such list of “qualified” potential nominees.
In the files of Brent Kavanaugh, who was then working in the White House counsel’s office, there is a review of all judicial appointments made by the Clinton administration. There were 36 women picked, 12 were African Americans, and 10 were Latinas. Not a single American Indian or Alaska Native was appointed.
That same list analyzed the Reagan and Bush years. It did not bother to chart the ethnicity. However a 1994 article in Judicature, pinned to Kavanaugh’s lists, notes that “if federal courts are to have legitimacy among all segments of the American population, no segment should feel excluded on the basis of gender or minority status. Moreover, an integrated bench offers judges the opportunity to educate each other about a variety of issues, including those involving race and gender. Indeed, women and minorities are thought to bring to the bench a special sensitivity and perhaps unique perspectives on these issues.”
A decade ago The Nation published its potential candidates and included this prospect. “John Echohawk, a legendary lawyer who has run the Native American Rights Fund for more than thirty years, would bring a perspective to the court that has been overlooked for 230 years.” Echohawk, Pawnee, was one of 8 candidates to make that list. Another potential candidate from that era is Robert Anderson, Boris Fort Ojibwe. He is an emeritus professor of law at the University of Washington, has served in a variety of capacities on appellate courts, and is a regular visiting professor at Harvard Law School.
Of course Echohawk and Anderson could still be considered, but these days judicial picks, even for lower courts, are mostly candidates who are in their 50s (making the impact of a lifetime appointment even more significant because it will last over several presidential administrations).
The deep talent pool
The story today is about the deep pool of Native American talent.
President Barack Obama was set to nominate Keith Harper, Cherokee Nation, to the 10th U.S. Circuit Court of Appeals. The Oklahoma delegation went ballistic. The Tulsa World described the nomination as an “insult” and “even stupid.”
Oklahoma Republican U.S. Sen. Jim Inhofe was successful in blocking the nomination. He complained as much about the process from the Obama White House as the nomination itself. He told the Tulsa World: “If they are serious about doing something with this guy, there were ways they could have done it that would have been much more palatable to us.”
John Echohawk told the Tulsa Tribune in response: “No Native American lawyer has ever served on an appellate court in the federal justice system.”
He called Harper highly qualified and he deserved to be nominated and confirmed.
“During my 40 years in the practice of American Indian law, we Native attorneys have worked toward the day that one of us would break through the glass ceiling and be named as an appellate judge,” Echohawk wrote. He said that “Native lawyers of my generation are not seeking judicial appointments, because those should go to younger people who can serve on the bench for a long time.”
Echohawk’s statement carries even more significance when applying the logic to the Supreme Court.
Harper served in the Obama administration as the U.S. ambassador to the United Nations Human Rights Council in Geneva, Switzerland.
A few more names that could be considered:
R. Trent Shores, Choctaw, the U.S. Attorney for the Northern District of Oklahoma. Last year President Trump appointed Shores to lead the Presidential Task Force on Missing and Murdered American Indians and Alaska Natives.
Raquel Montoya-Lewis, Isleta Pueblo. She is a Washington Supreme Court justice. "Because Judge Montoya-Lewis is Native American, many will focus on the historic nature of this appointment,” Washington Gov. Jay Inslee said when she was appointed. “And it’s entirely appropriate to do so. But I want the record to show that Judge Montoya-Lewis is the kind of exceptional judge I want serving on the highest court in our state because she is the best person for the job."
Hillary Tomkins, Navajo. She was the solicitor for the Department of the Interior in the Obama administration and now practices with Hogan Lovells in Washington.
Stacy Leeds, Cherokee Nation, former justice on the Cherokee Supreme Court, former dean at the University of Arkansas School of Law.
Angela R. Riley, Citizen Potawatomi Nation, a UCLA law professor, and chief justice of the Citizen Potawatomi courts.
Wenona Singel, Little Traverse Bay Bands of Odawa Indians, is the senior deputy counsel to Michigan Governor Whitmer. She has served as the chief appellate justice for the Little Traverse Bay Bands of Odawa Indian, and has been a law school professor.
Elizabeth Kronk Warner, Sault Ste. Marie Tribe of Chippewa Indians. Warner is dean at the S.J. Quinney College of Law at the University of Utah. She has been an appellate judge for her tribe and been a district judge for the Prairie Band Potawatomi Tribe.
Kevin Washburn, Chickasaw Nation, dean, College of Law, University of Iowa. He was the assistant secretary for Indian affairs in the Obama administration and has been a federal prosecutor.
Leah Harjo-Ware, Muscogee (Creek) Nation. She is chief justice for the Muscogee (Creek) Nation Supreme Court. She's one of the few judges in the world to list her clans — J wA’yû (Deer) Clan from the zAs@^nûnû (Sand Creek Ceremonial Ground) — on the official website. This is important because it affirms tradition in a legal setting and her appointment would send the message about the significance of tribal courts. She is the nation's first Vhakv Hayv Espvkacv or attorney general.
Abby Abinanti, Yurok, is chief judge for the Yurok. And at least one observer of the legal profession said she should be on any list because of her “amazing judicial career, including being the first Native person in California to be a state court judge, etc etc etc.”
There is a metaphor here. Look through Judge Abinati’s record and there is a clarity about what’s missing from the federal judicial system. She was a student who rose up via Deganawidah-Quetzalcoatl or D-Q University. She experienced the challenges of being the first generation to take on law school, failing her first bar exam, and then succeeding and establishing a practice. After that she was appointed to a California state court.
The fact is the federal court system has a lot to learn. So many tribes have success stories involving peacemaker courts and deliver justice instead of law enforcement.
"Abinanti is one of a growing number of tribal judges nationwide incorporating traditional culture into their courtrooms, with the dual aim of rehabilitating individuals and providing justice to people often failed by the regular criminal-justice system. Abinanti, whose court was recently described in a federal assessment as “extremely fair and balanced in its rulings,” is more likely to ask defendants to devise their own ways to atone for a crime or settle a dispute than to slap them with fines or incarceration," according to a Harvard study on innovation.
As Abinanti explains, “I’m looking at: How did we resolve things before our cultural interruption, when invasion occurred? We were village people, and we sat around and had discussions. My purpose is to help you think up how to make it right if you made a mistake …. For me, jail is banishment. It’s the last resort.”
A logic train that would be incredibly useful at the Supreme Court. Perhaps it seems odd that a Native American Supreme Court appointment should be rushed ahead of an appeals court posting or even additional district court nominees. Then again after more than 230 years, "rush" hardly seems the right word. And what better way to increase the velocity of representation?
Mark Trahant, Shoshone-Bannock, is editor of Indian Country Today. On Twitter: @TrahantReports Trahant is based in Phoenix.
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