This month, President Joe Biden and the U.S. Senate made Supreme Court history. Now it may be the Western District of North Carolina’s turn.
The 150-year-old federal court district, which stretches from east of Charlotte to the Tennessee and Virginia state lines, has never had a woman or a person of color serve as a trial judge. While other federal court districts in North Carolina and across the Southeast have added racial and gender diversity to their benches, the Western District’s “Article III” judges have remained exclusively white and male dating back to 1872.
Biden now has an opportunity to change that.
In February, U.S. District Judge Max Cogburn of Asheville announced that he intends to move to senior status, which would allow him to carry a lighter case load and would create a vacancy on the Western District bench.
Cogburn, who was nominated by Barack Obama, apparently added a caveat to his announcement: The judge said he will give up his seat only if Biden’s nominee — almost certainly a Democrat — is approved by the U.S. Senate. Otherwise he will remain in his job, according to several people familiar with Cogburn’s plans but who asked not to be identified because they were not authorized to speak about them.
Earlier this month, Ketanji Brown Jackson became the first Black woman approved for a seat on the U.S. Supreme Court.
The choice of Cogburn’s replacement also could prove historic. The country is divided into 94 federal court districts. The Western District of North Carolina is one of only four that has never had a woman or person of color serve as an Article III judge. The others: Idaho, North Dakota and the Eastern District of Oklahoma.
The 32 counties of the Western District are home to more than 3 million people, including the large and diverse urban areas of Charlotte, Asheville, Gastonia and Monroe. Veteran lawyers who practice here say it’s time for the local federal bench to look more like the people it serves.
“Lord yes, it’s important,” said Charlotte attorney James Ferguson, for decades one of North Carolina’s most prominent Black attorneys.
“It’s one thing if we hadn’t had any qualified candidates. But for many years, we’ve had many African-American lawyers, highly qualified, who have never even been thought about for such a position. Now at least, people are talking about them. People, both black and white, realize how important it is to have all segments of our society represented on the federal bench. For the first time there is serious talk about submitting their names to the president.”
Veteran Charlotte trial attorneys Claire Rauscher and Chris Fialko, both White, echoed the sentiment. Rauscher, former head of the district’s Federal Public Defender’s Office, called it “highly significant” for the federal bench “to reflect the composition of the community.”
Fialko said it would be “healthy” for the Western District to add a judge “with a different perspective and life experience.”
“To be blunt, I’m hoping the nominee is a minority who has not been a career prosecutor,” he said.
Four of the five full-time Western District trial judges were either U.S. attorneys or spent part of their careers as federal prosecutors. They operate one of the staunchest law-and-order federal court districts in the country.
In fiscal 2019, the mean prison sentence here was 55% higher than the national figure, according to the U.S. Sentencing Commission. The district’s rate of pretrial detention was the fourth highest in the country. In 2020, the Western District judges ranked last in their rate of compassionate releases granted to inmates for COVID-19 or other reasons.
Biden, by many accounts, has submitted the most diverse list of judicial nominees in U.S. history, including the first Muslim-American judge, the first LGBTQ woman to serve on a federal appeals court and, of course, Jackson. In a break from the norm, about 30% of Biden’s judicial nominees — including Jackson — have public-defender backgrounds.
While a lower-profile appointment than some, the Western District has attracted an equally diverse list of candidates, according to people familiar with the process. They include:
▪ Carla Archie, Mecklenburg County’s senior resident Superior Court judge, who is Black. Archie, who is believed by some to be the front-runner for Cogburn’s seat, did not respond to an Observer email Tuesday seeking comment.
But in a February email to the Observer, on the day Biden announced Jackson as his pick for the Supreme Court, Archie touched on the significance of further diversifying the bench.
“As an African American woman who has never seen her image reflected on the highest court in our country, I feel extremely lucky to bear witness to this moment in history,” Archie wrote. “It is a poignant reminder, especially during Black History Month, of the progress we have made as people of color, as women, and as a country; and my heart swells with pride.”
▪ Erin Taylor, a supervisor with the Federal Public Defender’s Office. Taylor, president-elect of the Mecklenburg County Bar, also is Black. She could not be reached for comment.
▪ Reggie McKnight, a Superior Court judge in Mecklenburg County and veteran attorney in the Western District courts. McKnight is Black.
▪ Noell Tin, the senior partner of a prominent Charlotte law firm who is highly active in Democratic politics. Tin has Burmese parentage. Reached by phone Tuesday, he declined comment.
▪ Dena King, who last year became the first Black woman to become U.S. Attorney in the Western District.
▪ David Keesler, a U.S. magistrate judge for the Western District since 2004. Keesler, a Charlotte native and former state and federal prosecutor, is White. “I have loved my work as a U.S. Magistrate Judge,” Keesler said in a Wednesday email, “and I would be deeply honored to be considered for the U.S. District Judge position.”
Other potential candidates include Buncombe County Superior Court Judge Jacqueline Grant, a longtime Asheville attorney and former president of the N.C. State Bar; Cheyenne Chambers, a former Charlotte attorney who now works for the Civil Rights Division of the U.S. Justice Department; and Meghann Burke, an Asheville attorney who is now executive director of the labor union representing women professional soccer players. If nominated, Burke would be the Western District’s first openly LGBTQ Article III judge. She declined comment Tuesday.
Election year
Federal court appointments, which are lifetime and ostensibly non-partisan, have given rise to some of the most bitter partisan political fights in the country.
Up to now, 59 of Biden’s 83 judicial nominees have been approved by the U.S. Senate. According to Ballotpedia, the federal courts had 72 Article III vacancies as of March with only 19 pending nominations.
Both Houses of Congress are up for grabs in November. Should Republicans regain the Senate, Biden’s choices for court seats face a far more uncertain path, adding urgency to the timing of his Western District choice. In the end, the state’s Democratic congressional delegation will send three names to the White House for consideration.
Many expect Democratic Congresswoman Alma Adams of Charlotte to play a major role in the selection of the nominee. The Observer contacted her office Tuesday about the judicial opening but had not received a response as of Wednesday morning.
In an added complication, North Carolina has two Republican U.S. senators, Thom Tillis, who was re-elected in 2020 to a six-year term, and Richard Burr, who will leave office at year’s end. As part of Washington tradition, the White House consults with a state’s senators before choosing a judicial nominee.
Tillis spokesman Adam Webb sounded a diplomatic tone on Tuesday.
“Senator Tillis plans to work with Senator Burr and the White House to help select the best candidate to serve the people of the Western District of North Carolina,” Webb said. “He looks forward to this process and ensuring that the next District Court judge is nominated and confirmed in a timely manner.”
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