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The Next 11th Circuit Judge Should Live Up to the Court’s Legacy of Fairness

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Judge Gerald Tjoflat of the U.S. Court of Appeals for the powerful 11th Circuit, which covers Florida, Georgia, and Alabama, announced on August 13 that he will soon take senior status. The upcoming vacancy gives the Senate and the president an important opportunity to further shape the court.

The 11th Circuit has a significant history: Formerly part of the original 5th Circuit that covered the Deep South, the 11th Circuit has included distinguished jurists like Frank Johnson and Elbert Tuttle, appointed by both Democratic and Republican presidents, who made crucial contributions to desegregation, civil rights, and other important issues and gave the federal judiciary “some of its finest moments.”

But President Trump’s and the Senate’s three judicial appointments to the 11th Circuit so far have not lived up to that tradition. To the contrary, these judges have moved the 11th Circuit further to the right – and have harmed the rights of millions of Americans in its jurisdiction.

For example, take Trump-appointed 11th Circuit Judge Kevin Newsom’s ruling in Lewis v. City of Union City. In that case, Jacqueline Lewis, an African-American woman detective in the city police department, sued for discrimination on the basis of race and sex after she was fired after being temporarily unfit for duty and treated differently than two white male colleagues. A three-judge panel of the 11th Circuit ruled that under accepted Supreme Court precedent, Lewis should have the chance to prove her discrimination claim at trial. But Judge Newsom, joined by fellow Trump judges Britt Grant and Lisa Branch and other judges, reversed that decision and ordered that her case be dismissed without trial.

The dissent explained that Newsom’s opinion established a new standard in such employment discrimination cases that would make it much more difficult for employees like Lewis to get a trial on their claims. As the dissent put it, with respect to the careful balance drawn by Congress and the Supreme Court between employers and employees on job discrimination, Newsom’s ruling “drops an anvil on the employer’s side of the balance.”

Or look at Trump judge Britt Grant’s decision in L.J. v. School Board of Broward County. In that case, an administrative law judge had found that the county school board had failed to properly implement an individualized education program (IEP) for a middle school student with autism-related speech and language disabilities. But the school board appealed, and a federal district court and a 2-1 opinion by Judge Grant ruled for the school board.

As Judge Adalberto Jordan explained in his dissent, the record showed that the board had “materially failed to implement” the IEP by not providing lesson plans in advance to the student’s mother, which clearly violated the federal Individuals with Disabilities Education Act. But Grant’s decision will make it harder to hold schools accountable for their failure to properly educate students with disabilities.

Yet another example is Saunders v. Sheriff of Brevard County, in which Judge Newsom cast the deciding vote to reverse a district court and dismiss a lawsuit by someone who was awaiting trial after contesting the inhumane conditions of his solitary confinement. As Judge Beverly Martin explained in dissent, individuals in solitary confinement were “forced to walk barefoot in cells covered with virtually every type of bodily waste and fluid, from urine and feces to semen and vomit,” and had to “sleep on mats directly on the waste-filled floor” for “months at a time.”

The plaintiff was clearly entitled to a trial on his contention that the sheriff was “deliberately indifferent” to these “overcrowded and unsanitary conditions,” but the decision Newsom joined insisted the case be dismissed based on qualified immunity. Judge Martin noted that such immunity was particularly inappropriate because the official literally “laughed” at Saunders as he was “beating his head on the door” to get attention, an act of “obvious cruelty.”

Judges Frank Johnson or Elbert Tuttle would not have written or joined these decisions. Their records demonstrate the fair-mindedness that is especially paramount for federal jurists.  And President Trump should consult with all the senators in the 11th Circuit, Democratic as well as Republican, to nominate someone in that tradition to fill the forthcoming vacancy. If he does not, which is all too likely based on his past record, the Senate should reject Trump’s nomination and insist on a nominee that understands the impact the law has on all Americans.