Alabama’s first Black federal judge, U.W. Clemon, who wrote letters to President Joe Biden urging him not to nominate Ketanji Brown Jackson for the U.S. Supreme Court, still opposes her but won’t testify against her, he told AL.com.
“I will not testify against her before the senate judiciary committee,” said Clemon, former chief judge of the U.S. District Court of the Northern District of Alabama. “I’m not going to try to persuade the judiciary committee not to confirm her.”
Biden pledged to nominate the first Black woman justice to the Supreme Court. Jackson’s nomination will be the subject of hearings in the senate judiciary committee next week, beginning Monday. She has been meeting senators this week.
In one letter to Biden, Clemon cited her ruling in a 2016 class-action case against Lockheed Martin on behalf of 5,500 Black workers. She declined to approve a settlement that had been reached that would have paid out $22 million to the plaintiffs, Clemon said. It also would have implemented reforms in Lockheed’s evaluation system for pay and promotions, he said.
“It wasn’t just that she refused to approve the settlement, it’s also that she precluded the discovery and by her delay in issuing the decision, prevented an effective appeal of the decision,” Clemon said.
Clemon served as counsel at the firm Mehri & Skalet, which represented the plaintiffs in the Ross v. Lockheed case. Jackson is a circuit judge on the U.S. Court of Appeals for the District of Columbia, and from 2013-2021, she was a district judge on the U.S. District Court for the District of Columbia.
There were other rulings in her career that have concerned him, he said.
“As for the decisions that Judge Jackson rendered as a district judge, I stand by everything I’ve said,” Clemon said.
“Before the appointment was made, I had three conversations with the president’s senior adviser (Cedric Richmond),” Clemon said.
Clemon believes retiring Justice Stephen Breyer wanted Jackson to succeed him because she was his former law clerk.
“When I decided that I was going to retire, I wanted one of my law clerks to succeed me,” Clemon said. “I’m sure Justice Breyer feels the same way.”
Although former U.S. Sen. Doug Jones of Alabama helped vet the Supreme Court candidates for Biden, Jones did not try to influence Clemon’s opinion about Jackson, he said.
“Doug Jones and I have been friends since I appeared before the senate judiciary committee in 1980,” Clemon said. “We were friends when he was U.S. attorney and I was chief justice.”
They did discuss the nomination, he said.
“Of course, we talked about it,” Clemon said. “No, he did not try to dissuade me from doing anything
…No, he did not tell me to calm down on Ketanji.”
He believes the Biden administration duly noted his objections to Jackson, he said.
“We all talked,” Clemon said. “They are aware of my position. They are aware of my background.”
Clemon said he’s not the only civil rights attorney who had concerns about Jackson.
“As a civil rights lawyer, I have to be concern about decisions she has rendered in that area,” Clemon said.
“The decisions that she rendered as a district judge are a matter of public record, and if anybody wants to look at them I’m sure they can,” Clemon said. “That was the sole basis of my objection. Obviously, she’s a woman of great accomplishments: two Harvard degrees, on the sentencing commission, obviously she has very impressive credentials.”
Civil rights organizations have been cautious about publicly criticizing a Supreme Court nominee, he said.
“I’m not surprised, because very often those organizations have cases that will likely end up before the Supreme Court, so they’re in a vulnerable position,” Clemon said. “Much like many of the civil rights lawyers who have contacted me from all over the country and who likewise are concerned, but because of the likelihood that they may someday have a case before the Supreme Court, they can’t afford to publicly say something about it. Not only do they believe it, many of them contacted me personally and affirmed what I have said.”
Another ruling by Jackson that concerned Clemon was back in the news recently.
A U.S. appeals court on Feb. 11 reinstituted a lawsuit against the Metro transit authority in Washington, D.C., by the family of lawyer Okiemute C. Whiteru, 35, who fell to his death from a platform at a subway station in Washington in 2013.
A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit reversed Jackson’s 2020 dismissal of the case on grounds of error, allowing the family to seek damages. Jackson relied on the Washington Metropolitan Area Transit Authority’s argument that Whiteru was intoxicated and contributed to his own death, clearing it of any liability.
“The judge (Jackson) tossed out the case saying he was contributorially negligent and the D.C. Circuit reversed, saying, as we all know, that contributory negligence is a matter to be decided by a jury, not a judge,” Clemon said.
“Those kinds of cases are cases that I absolutely have to be concerned about,” Clemon said.
Clemon, who will turn 79 on April 9, said he can afford to be outspoken.
“As one whose career as a lawyer is on its waning days, I’m one of the few people who can afford to raise the issue, which is what I sought to do with the president,” Clemon said. “And I did so. And I think he heard me, and he made his decision.”
Clemon doesn’t want to push it further. “The bottom line is that I’m not going to testify against her before the senate judiciary committee,” he said.