The race for one of the several Jefferson County Circuit Judge seats (the Circuit Court in Alabama is the level at which jury trials are held in both criminal and civil matters–this was for a civil trial seat) was already interesting before everything blew up. Sitting Judge Nicole Gordon Still (appointed to the seat in 2009) faced a Democratic primary runoff with Kenya Lavender Marshall, after Marshall beat her in the primary with a plurality (42%). Still polled 39% in the primary. No Republican filed to run, so the Democratic primary run-off would effectively determine the winner of the seat.
It was unusual from the start because it is rather uncommon for a sitting judge, even one that has achieved such stature by appointment, to be heavily opposed in a party primary, and even more unusual for the judge to lose. The powers within each party commonly see to it that no competition arises within the party for seats already occupied. But that doesn’t hold for the opposing party; even when the sitting judge has won election to the post, i.e., won an election after appointment, the party out of power will ordinarily offer up some lamb for slaughter, and later reward them with an appointment when appointment time comes around to them again. The Republicans didn’t in this case. Hmm.
But let me lay out clearly how judges ordinarily get ensconced on the bench. First, a sitting judge will retire mid-term, usually waiting until the Governor’s office is held by someone of their party. Then the Governor will appoint whomever the local party apparatchiks decree is deserving of the post. When election time rolls around, the newly-seated judge will have the huge advantage of being able to run as the incumbent against whomever the other party puts up as a candidate (the slaughter lamb). Once one election is decided in favor of the judge, the seat is practically guaranteed until the judge wishes to relinquish it.
But in this case, Governor Riley reached outside his party (Republican) to appoint Nicole (Nikki) Gordon Still. Then she runs for election as a Democrat and no one from the Republican party opposes her? Yet she faces stiff opposition from within her own party? What gives? Apparently there’s some internal conflict playing out here within the Democratic Party (and perhaps some favors promised to the Republicans). Still is the daughter of a prominent Jewish attorney in Birmingham, is young (40) and attractive and seems the perfect choice. But Marshall is also a young and attractive female (mid-30’s) and presents another perfect choice for the quasi-political position that is a Circuit Court Judgeship. Still is white. Marshall is black.
Then it really gets interesting. Still loses the primary runoff to Marshall. Shortly afterward, it is revealed that Marshall is facing sanction from the State Bar Association for converting to her own use money that she was holding in trust for a client of her legal practice. The amount in question is roughly $30,000. This would ordinarily result in an immediate suspension of the lawyer’s license, with a revocation of the license to follow. But Alabama law provides that a Circuit Court Judge must be a licensed attorney. The State Bar Disciplinary Committee, realizing the sticky situation in which they find themselves, gives Marshall a four-year suspension–roughly concurrent with her expected time on the bench from this election cycle, if she is allowed to stand for election.
So, now the question is whether a suspended license meets the requirement of the law that a judge be a “licensed attorney”. (I’ll get more on that later).
The local Democratic Party is in an uproar. The blacks that supported Marshall’s candidacy still wish her to be seated (provided of course she wins her unopposed election in the fall). The Still faction, presumably mostly white and with Jewish support firmly behind her, wishes Marshall to be disqualified and Still be put back on the ballot for November. And now every other candidate that ran (surprisingly, there were several others just on the Democratic side) believes they should be appointed to represent the party in the election.
Blacks are to Birmingham elections like water is to life on earth. They comprise about 2/3’s of the population of the city, and nothing happens without them. Almost all vote Democrat. Jews comprise a very small portion of the local population, but have outsized (relative to their population) representation in the judiciary and in the general legal community. They too, like their national cohorts, are reliably Democratic, but their meager numbers mean they have limited ability to influence electoral outcomes solely as Jews. They are practically invisible as any sort of identifiable political entity in the Birmingham area, and are mostly just lumped in with whites when it comes time for racial biases to animate voting preferences.
Jefferson County itself, in which Birmingham sits, is not majority black, but is closer to fifty-fifty. The seat at issue is a county-wide seat, excluding a portion of the county–the “Bessemer Division” that operates in many ways as a separate county–the details of which are not worth exploring here. The portion of the county that will decide the Still/Marshall seat is about half Republican, half Democrat.
It is often said that truth is the first casualty of war. But conflicts such as these can offer clarity. While it’s not clear exactly what political machinations took place behind the scenes to result in a sitting judge facing stiff opposition from her own Democratic party, or, how it was that she was appointed by a Republican governor, the actions taken by the interested parties are now in full view.
The State Bar’s Disciplinary Committee has proved how political expediency trumps its vaunted ethics calculus when dealing with cases that have political ramifications, especially if the ramifications have racial undertones. Lawyers caught “using” their client’s money on a scale such as Marshall has admitted are routinely and summarily disbarred.
The black caucus of the local Democratic party has laid bare its fangs when one of its own is threatened. John Rogers, a state senator representing the area and one of the de facto heads of the black caucus, has publicly supported Marshall’s continuation as the Democratic candidate. Never mind that “using” someone else’s money in the amount at question might be more than just unethical. Disregard the requirement that a Circuit Court judge be a licensed attorney. What does “using” another’s money to the tune of about $30,000 say for one’s fitness to serve as a judge?
And poor Nicole Gordon Still. I seriously doubt she had any inkling that things would turn out this way when Governor Riley crossed parties and appointed her to the bench. She spent in excess of $100,000 in the run-off, outspending Marshall by about 8 to 1, but still lost. It’s gotta hurt. And it’s really gotta rattle the rafters for the local bar, whose monopoly on picking judges seems in peril. Their attempt to decide who gets which judicial seat backfired. But they still (no pun intended) might get their wish.
Go to www.al.com and search “Nicole Gordon Still” or “Kendra Lavender Marshall” if you want more details. It is the website of the local paper, which has run a number of articles on the matter.
Coda: So far as I am able to tell through quick survey of the case law, there is no ruling in the appellate courts of Alabama regarding whether a “suspended” lawyer still meets the (Alabama) constitutional imperative that circuit court judges be licensed lawyers. So it is not clear whether a suspension of Marshall’s license disqualifies her. Circuit Court judges are emphatically not allowed to actually practice law while on the bench, so the prohibition against practice that a suspended license represents would in no way prevent her from performing her duties as a judge. I’ve got a feeling we might get some appellate court clarity on what, exactly, Amendment 328, Amendment of Article VI of the Alabama Constitution of 1901 (the amendment passed in the 1970’s) requires so far as judges and law licenses are concerned. The pertinent passage is straightforward:
Judges of the supreme court, courts of appeals, circuit court and district court shall be licensed to practice law in this state and have such other qualifications as the legislature may prescribe.
Marshall is undeniably licensed to practice law, except that the license has been temporarily suspended. Notice the date of Alabama Constitution– 1901. Indeed, the end of Reconstruction and the beginnings of Jim Crow. It wouldn’t surprise me, if Marshall is not allowed to be seated as a judge because of her license, that her faction blames it on the racist 1901 Constitution. Which it is. Or was. All the overtly racist stuff has been long overruled by Supreme Court fiat (Alabama or US). And the amendment requiring judges be licensed to practice law was passed right on the heels of the Civil Rights movement.