At present, Black judges make up 12.77 percent of the federal bench. This is actually, finally, starting to approach adequate representation for Black people in this country, in no small part because President Joe Biden has put forward the most racially diverse set of judicial nominations in history. But for decades and indeed centuries, diversity on the bench has not been anywhere close to where it should be. Donald Trump’s judicial appointees were, recall, 84 percent white.
Diversity matters on the federal and state judiciaries for a whole host of reasons, chief among them that such diversity determines whose stories are told in court and how. As former head of the NAACP Legal Defense and Educational Fund, Sherrilyn Ifill, put it in the New York Review of Books last week, in describing Justice Ketanji Brown Jackson’s questions at oral arguments in October over the future of affirmative action: “It has been a long time since a Black justice on the Court has spoken with such depth and experience about the many ways in which race can be deeply entwined with identity and self-expression.” As Ifill further detailed:
This oral argument mattered, in tone and substance. Its importance may have been underestimated by a benumbed Supreme Court press, understandably focused on what is likely to be the Court’s decision. Something was different here, whether it was Justice Jackson’s stunningly clear interventions; or [Solicitor General Elizabeth] Prelogar pointing out to the justices that only two women are arguing before the Court this term (would it be reasonable, she asked, for women to see that disparity and ask “is that a path that’s open to me?”); or Justice Kagan asking whether judges can consider race in hiring clerks—a question surely targeted at Justice Kavanaugh, who has spoken in the past about, and even earned praise for, hiring diverse law clerks. These moments seemed to pull the Court itself into the charged national debate about racial equality, closing the distance between the justices and our country’s ongoing struggle to build a fair and equitable democracy.
It is not, nor should it be, in dispute that “justice” often lies in the eye of the beholder. Jackson has made it abundantly clear in her short time on the Supreme Court that she will be a voice for a broader and more diverse notion of racial equality, and dignity as guaranteed in the Constitution. These interventions are important, as Ifill noted, if only because they remind us that the constitutional history of racial justice is too often written by those who have benefited most from a constitutional history of racial injustice.
I had been thinking about all of this when I contemplated the recent portrait ceremony of Judge Robert L. Wilkins. Wilkins was appointed to the U.S. Court of Appeals for the District of Columbia Circuit in 2014, where he sat alongside then-Judge Ketanji Brown Jackson. On Oct. 14, his official portrait was hung at the court in a ceremony typically representing one of the highlights of a judge’s tenure on the bench.
Wilkins was born on Oct. 2, 1963, in Muncie, Indiana, to Joyce Hayes Wilkins and John Wilkins. After he earned his J.D. from Harvard in 1989, he spent over a decade at the Public Defender Service for the District of Columbia—first as a staff attorney, and later as special litigation chief. He left the practice of law to work full time to help establish and create the National Museum of African American History and Culture. In 2016, Wilkins authored Long Road to Hard Truth: The 100-Year Mission to Create the National Museum of African American History and Culture.
What struck me most about Wilkins’ speech was that he used it to detail a sometimes submerged narrative about the complicated meaning of freedom: He told the story of his own family’s long journey through U.S. constitutional history, a very different encounter with the Framers’ ideas about freedom and justice.
Excerpts from his remarks at that event are reprinted, with Wilkins’ permission, below.
My maternal grandmother, Marcella Hayes, was with us during my investiture to become a District Court Judge. She has now gone on to glory. She was a documenter of our family history, and I inherited that habit from her. Inspired by my Grannyma, I have traced the maternal side of my family back six generations, to my great-great-great-great-grandmother, Edie Saulsbury. Edie was born sometime around 1810, when James Madison, considered by many the father of our Constitution, was president of these United States. She was born into slavery, and thus was not even considered a “person” within the meaning of Madison’s Constitution. She was impregnated by a white man at the tender age of 16, where the legal system did not even define the rape of a Black woman by a white man as a crime, did not allow a Black person to testify in court against the white person anyway, and made it a crime punishable by 30 lashes on the bare back for a Black person to raise a hand against a white person, even to defend oneself from being ravished. Edie gave birth to that child, a boy named Alexander, who would endure a life of slavery. She would later give birth to 12 more children, conceived with my fourth-great-grandfather, a man named David, who was enslaved and belonged to a neighboring family.
My father, John Wilkins, passed away almost 40 years ago. But he is here through me and my brother Larry, and through my many cousins and other relatives on the Wilkins side here today. I have also been able to trace my paternal side back six generations. My paternal grandfather’s name was Rev. George R. Wilkins. His maternal grandfather, my great-great-grandfather, was named George Richardson. George Richardson was born in 1848, and, when asked, during the 1900 census, he reported to the census taker that he was born in South Carolina, his mother was born in South Carolina, but that his father was born “at sea.” Think about that: The most plausible explanation for this series of events is that George Richardson’s father, my great-great-great-grandfather, was born aboard a slave ship. That would also mean that—six generations back—my fourth-great-grandmother delivered my third-great-grandfather in the filthy bowels of a slave vessel. I have not yet been able to determine my fourth-great-grandmother‘s name, but for the moment, let’s call her Nancy. George Richardson named one of his daughters Nancy, so perhaps he did so in honor of his grandma.
Consider for a moment the circumstances under which those two of my fourth-great-grandmothers, Edie and Nancy, lived and brought children into this world. Circumstances of kidnapping, coercion, abuse, and despair. And all that vile treatment was absolutely legal. All of it was condoned and facilitated by Madison’s Constitution.
And yet, many believe that our system of jurisprudence must consider how Madison and the other founding fathers interpreted the meaning of the words in our Constitution as infallible. When you think about the horrors visited upon Edie and Nancy, why should we have any confidence that those founding fathers had a proper understanding of the meaning of words like liberty, justice, equality, or due process? Let alone the only legitimate understanding of those terms? Those founding fathers drafted a Constitution that denied the humanity of Edie and Nancy; it didn’t even consider them to be “persons,” and you want to tell me that the only way to properly interpret the Constitution is to endorse and adopt their value system without question? That might honor Madison, but it dishonors Edie and Nancy. I cannot stand for that; but more importantly, no one should.
Edie was owned by at least three different slavemasters during her lifetime, and she was sold to her last master, Thomas Salsbury, to settle a debt. Thomas drafted a will in 1844 freeing Edie and the rest of his 20 or so slaves, upon his death and the death of his wife, and leaving them all of the 500-plus acres of land that he owned. But in 1850 Kentucky amended its state constitution to require all emancipated slaves to leave the state in order to be free—they had to go in exile—they even made it a felony for them to remain or to ever return to the state. So when Thomas Salsbury’s wife died in 1860, Edie filed suit to demand the right to remain in Kentucky, to inherit her fair share of that land, and for the freedom of herself and her 12 children. She argued that Kentucky’s constitutional amendments should not apply to her, her children and the others, because their former master, Thomas Salsbury, drafted his will before that state constitution was amended. When Edie filed her suit in 1860, the federal courts were closed off to her, because the Supreme Court had ruled three years earlier in the Dred Scott case that Blacks had no standing to sue in the federal courts because only citizens could avail themselves in that court and Black people were not citizens and could never be citizens, or even “persons,” within the meaning of the original U.S. Constitution. So in 1860, Edie filed her lawsuit in the only forum open to her, Muhlenberg County Circuit Court; and in 1862, in the midst of the Civil War, she won! The court decreed that Thomas Salsbury intended that Edie and the others would be free and be able to remain in Kentucky, and that because he expressed his intent prior to the amendment of the Kentucky Constitution, his intent should govern.
Edie and her children, who included my great-great-great-grandfather, inherited more freedom from the original intent of the words of Thomas Salsbury than from the original intent of the words of Thomas Jefferson. I am here today due to the grit of Edie. I am here because she had the determination to seek justice, despite all of the injustice that surrounded her. I am here because of the perseverance of Nancy, who endured a pregnancy and brought forth a son, despite the absolute despair she must have felt about his future while in the bowels of that slave ship. I am here because of the sacrifices my mother made to help me get the best education I could possibly obtain. I am here because of the many people who envisioned that liberty, justice, and equality should have their full meanings, consistent with the broad context of the Constitution, rather than the cramped definition of persons whose understanding of those concepts was corrupted, at least in part, by their inhumanity and bias.
Me standing here today, particularly as a judge on one of the most important courts in this country, and appointed by a Black president of the United States, is literally “the substance of things hoped for, the evidence of things not seen.”
Keep the faith, always keep the faith. God bless you.