PLN cited in article on disciplinary complaint against federal judge
Weighing the Place of a Judge in a Club of 600 White Men
The Belle Meade Country Club in Nashville has about 600 voting members. None of them are women, and none of them are black. But one of them is a federal judge.
In a confidential 10-to-8 decision last month, the Judicial Council of the Sixth Circuit, which hears misconduct complaints about federal judges in Tennessee and three other states, said the judge could keep his membership at Belle Meade.
The ruling opens windows on two odd institutions. One is a fading country club that was once an arbiter of success in Nashville’s social, political and business circles. The other is the United States Court of Appeals for the Sixth Circuit, which sits in Cincinnati and is surely the most dysfunctional federal appeals court in the nation.
“The record before this court paints a picture of Belle Meade as an old boys’ club that considers and admits Caucasian male applicants on a different basis than African-American and female applicants,” Judge R. Guy Cole Jr. wrote in a dissent from last month’s ruling. “We federal judges must sometimes make sacrifices for the honor of the office we hold, and the judge’s membership in Belle Meade should have been one of them.”
The subject of the complaint, Judge George C. Paine II, the chief bankruptcy judge in Nashville, said in a statement that he had been caught in political cross-fire.
“Unfortunately there is a fairly corrosive atmosphere today in Sixth Circuit and it is fraught with agendas,” he wrote.
It is true that relations among the judges on the Sixth Circuit have been marred by venomous discord for at least a decade, mostly along ideological lines. The voting in the Belle Meade matter, according to one judge’s tally, followed the usual pattern, with every appeals court judge appointed by a Republican president voting to allow Judge Paine to keep his membership and every one appointed by a Democrat voting the other way.
(Some district court judges also serve on the judicial council. Their voting was not as predictable.)
In a follow-up e-mail, Judge Paine said he found it “remarkably hypocritical” that the Sixth Circuit had singled him out for investigation when two other judges had been members of the club. One was a federal district judge who has since retired. The other was Judge Gilbert S. Merritt, a liberal member of the appeals court and an honorary, nonvoting member of Belle Meade.
In an interview, Judge Merritt acknowledged that Belle Meade used to discriminate against blacks. But these days, he said, minority members would be welcome if they could only be persuaded to apply. “Maybe they would not feel comfortable,” he said.
In its 110-year history, according to court documents, Belle Meade has admitted a single black person, but only as a “nonresident member” who cannot vote on the club’s affairs. Women, for their part, may join as “lady members.” Those memberships do not come with a vote, either.
“My understanding is they don’t have a racial policy against blacks,” Judge Merritt said. “What they do have is a problematical policy about women.”
Nashville may be liberal by Southern standards, Judge Merritt added, but it is still a Southern city. “It’s not New York or Chicago, where full integration has taken place,” he said. “Many people wish that it would. It’s just the mores, and there is separation.”
A spokesman for the club said it never comments on its policies or members.
Chief Judge Alice M. Batchelder wrote the majority decision dismissing the complaint.
“Reasonable minds could — and indeed do — differ on the question of whether this club engages in invidious discrimination,” she wrote. But Judge Paine, the bankruptcy judge, had “engaged in long and sincere efforts to integrate the club” and so was blameless, Judge Batchelder wrote.
That reasoning is hard to square, the dissenting judges said, with the Code of Judicial Conduct and the official commentary to it. The code forbids federal judges from being members of clubs that discriminate based on race or gender. The commentary makes a limited exception for judges who “make immediate and continuous efforts to have the organization discontinue its invidiously discriminatory practices.”
But even such energetic judges must resign, the commentary says, if the practices do not cease “as promptly as possible” and “in all events within two years.”
Judge Paine joined Belle Meade in 1978. He wrote a letter to the club asking it to increase the diversity of its membership around 1995. About six years ago, he sponsored a black man for membership, so far without success.
The majority, Judge Eric L. Clay wrote in a second dissent, simply ignored the two-year requirement even as it accepted the “actually ludicrous” contention that the club did not discriminate when it let applications from black prospective members, including the one sponsored by Judge Paine, languish for years.
Documents in the case have been distributed by Alex Friedmann, an editor at Prison Legal News who helped file the complaint. He would not name the complainant but said he had received the judicial council’s ruling from her. The Tennessean reported that the complainant had been an intern at Prison Legal News.
Judge Merritt, who was interviewed during the investigation and did not vote on the complaint against Judge Paine, said he was sensitive to criticism from Judges Cole and Clay, both of whom are black. “If I were in their role and in their position,” he said, “I probably wouldn’t understand it either, that a club really can’t attract minority members.”
As for Judge Paine, he has had enough. “Needless to say,” he added, “I am looking forward to my retirement from the federal judiciary at the end of the year.”
Ed. Note: The decision of the Judicial Council of the Sixth Circuit was later reversed, and the complaint against Judge Payne upheld by the Committee on Judicial Conduct and Disability.