Grave Concerns on the Nomination of Jerome Holmes

Recipient: Senators Arlen Spector and Patrick Leahy

The Honorable Arlen Specter, Chairman
The Honorable Patrick J. Leahy, Ranking Member
Committee on the Judiciary
United States Senate
Washington, DC 20510

Dear Chairman Specter and Ranking Member Leahy:

On behalf of the undersigned organizations, we write to express our grave concern regarding the nomination of Jerome Holmes to serve on the Court of Appeals for the Tenth Circuit. Mr. Holmes has been a longstanding and outspoken critic of affirmative action. His criticism of affirmative action raises serious questions about whether litigants could expect him to rule impartially and fairly on claims that turn on legal principles of affirmative action, and about Mr. Holmes’ approach to antidiscrimination laws more broadly, if he is confirmed.

Many civil rights organizations, including the Leadership Conference on Civil Rights (LCCR), the Leadership Conference on Civil Rights Education Fund (LCCREF), and the other signatories to this letter, worked to persuade the U.S. Supreme Court to uphold the University of Michigan’s affirmative action programs. In the closely watched decision, the Supreme Court reaffirmed that universities may take race into consideration as one factor among many when selecting incoming students. In a 5 to 4 opinion written by Justice O’Connor, the Supreme Court in Grutter v. Bollinger specifically endorsed Justice Lewis Powell’s view in 1978’s Regents of the University of California v. Bakke that student body diversity is a compelling state interest that can justify using race in university admissions. The Supreme Court thus resolved a split among the lower courts as to Bakke’s value as binding precedent.

Both before and after the Court spoke in Grutter, Mr. Holmes has been openly hostile to affirmative action, expressing his deeply held beliefs regarding the matter. To that end, Holmes has penned several articles widely publicizing these views. In one article, Holmes referred to affirmative action as a vehicle to “[sow] the seeds of racial disharmony.”¹ As the Court decided the University of Michigan affirmative action cases, Holmes stated that, “[t]he court did not go far enough…the court upheld the affirmative action policy of the university’s law school. And in so doing, it missed an important opportunity to drive the final nail in the coffin of affirmative action.”² With regard to minority scholarships, Mr. Holmes has written that, the “shelving [of] race based scholarship programs . . . takes us one step closer to a time when constitutionally dubious and morally offensive racial classifications will no longer impede the progress of any citizen toward full achievement of the American dream.”³

Affirmative action is a tool to provide qualified individuals with equal access to opportunities. Affirmative action programs, including recruitment, outreach, and training initiatives, have played a critical role in providing African-Americans and other minorities and women with access to educational and professional opportunities they would otherwise have been denied despite their strong qualifications.

Although progress has been made over the last 30 years, ensuring equal opportunity for African- Americans and other minorities and women remains an elusive goal. Continued use of affirmative action is necessary to help break down barriers to opportunity and ensure that all Americans have a fair chance to demonstrate their talents and abilities. Therefore, we have no choice but to express our deepest concerns regarding Mr. Holmes’ nomination.

If you have any questions or need further information, please contact Nancy Zirkin, LCCR deputy director, at (202) 263-2880 or Richard Woodruff at the Alliance for Justice at (202) 822-6070.

Sincerely,

Alliance for Justice
American Federation of State, County and Municipal Employees
Feminist Majority
Lawyers’ Committee for Civil Rights Under Law
Leadership Conference on Civil Rights
Legal Momentum
Mexican American Legal Defense and Educational Fund
NAACP Legal Defense & Educational Fund, Inc.
National Association for the Advancement of Colored People (NAACP)
National Partnership for Women & Families
National Urban League
National Women’s Law Center
People For the American Way
The American Association for Affirmative Action
YWCA USA

cc: Senate Judiciary Committee

1. “Race-Based Policies are Divisive,” The Daily Oklahoman, December 8, 2002

2. “The Court Misses an Opportunity,” The Daily Oklahoman, July 2, 2003 Leadership Conference on Civil Rights Page 2

3. “A Step Closer to King’s Dream,” The Daily Oklahoman, Jan. 19, 2004