Oppose Confirmation of Jerome A. Holmes to Tenth Circuit

Recipient: U.S. Senate

July 24, 2006

Dear Senator:

On behalf of the Leadership Conference on Civil Rights (LCCR), the nation’s oldest, largest, and most diverse civil and human rights coalition, we write to express our opposition to the nomination of Jerome A. Holmes to serve on the Court of Appeals for the Tenth Circuit. Mr. Holmes has been a longstanding and outspoken critic of affirmative action, and his views raise serious questions about whether he would rule impartially and fairly in cases involving affirmative action. In addition, his publicized views on criminal justice matters raise doubts about his commitment to protecting the due process rights of the accused.

Many civil rights organizations, including LCCR and its sister organization, the Leadership Conference on Civil Rights Education Fund (LCCREF), worked to persuade the U.S. Supreme Court to uphold the University of Michigan’s affirmative action programs in 2003. In a 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 in several widely publicized articles. In one article, Mr. Holmes referred to affirmative action as a vehicle to “[sow] the seeds of racial disharmony.” 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.” 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.”

Affirmative action is an important tool for providing qualified individuals with equal access to opportunities. 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. Because securing equal opportunity for African-Americans and other minorities and women remains an elusive goal, its continued use is necessary to help break down barriers to opportunity and ensure that all Americans have a fair chance to demonstrate their talents and abilities.

Mr. Holmes’ outspoken views regarding the criminal justice system are also very troubling. In one debate, he argued that capital punishment is worthwhile in spite of the possibility of wrongful executions: “[L]ike any human endeavor, there is a possibility of error,” but “the statement society is saying [by executing a convicted murderer] … is not materially diminished by the fact that in the implementation of the death penalty mistakes are made.” Given the irreversible nature of the death penalty and the long history of racial and ethnic bias in its application, Mr. Holmes’ attitude raises serious questions about whether he will rule in death penalty cases with the utmost fairness. Similarly, Mr. Holmes has also been dismissive of concerns about racial bias in the jury system, even going so far as to suggest that individuals who complain of racial bias “may actually give the green light to jurors to exercise arbitrary power in the jury box when their racial number allow it, as they apparently did in the O.J. Simpson case.”

Because Mr. Holmes failed in his confirmation hearing and in follow-up questions to adequately address the above concerns or to provide sufficient assurance that he will not allow his personal views to affect his decisions as a federal judge, we have no choice but to oppose his confirmation to the Tenth Circuit. Thank you for your consideration. If you have any questions or need further information, please contact Nancy Zirkin, LCCR deputy director, at (202) 263-2880.

Sincerely,

Wade Henderson
Executive Director

Nancy Zirkin
Deputy Director