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President Bush, During your election campaign you sounded two themes repeatedly. One was that, in contrast to your Democratic Party competitor, you would be able to work with Congress in order to actually accomplish good things. The other was that you would promote a politics of inclusiveness without resorting to divisive policies. One way of showing your serious intention to make good on these promises would be to nominate and support (and, if necessary, fight for) an African American nominee to the 4th U.S. Circuit Court of Appeals. Although that circuit (encompassing Maryland, North Carolina, South Carolina, Virginia, and West Virginia) has the highest percentage of blacks of any circuit in the federal judiciary, it has never had a black appellate judge. Indeed, it is the only all-white court of appeals in the country. Bill Clinton nominated three blacks to the court, but they all were blocked, mainly by the resistance of Republican Senator Jesse Helms of North Carolina. There are several reasons for you to become the president who breaks the color bar in the 4th Circuit. The blocking of Clinton’s nominees (and the bold, activist conservatism of a slim majority on the 4th Circuit) has raised the profile of that court. Any appointments you make there will gain an unusual amount of publicity. That all of the rejected Clinton nominees were black has led many people to charge that racism had something to do with their unhappy fate. This charge is buttressed by recent findings that black nominees have been rejected twice as frequently as white nominees by the Republican-controlled Senate. If racism has had something to do with selecting personnel for the 4th Circuit (or any other federal court), you should want to make it clear that the Bush administration will not tolerate such prejudice. At the same time, by choosing a black conservative jurist for the 4th Circuit, you can perhaps show that what previously appeared to be a matter of race was, in reality, nothing more than a matter of politics. From the point of view of conservatives, the problem with the Clinton nominees was not their skin color but their liberal leanings. Yet another benefit of appointing a black to the 4th Circuit is that doing so would signal to young, ambitious black professionals that they have a bright future inside the big tent of the GOP. The prominence of General Colin Powell and Condoleezza Rice help. But the opposition can claim that they are mere exceptions that prove the rule. Appointing more blacks to important positions of authority will defang that charge. As things currently stand, the Democrats attract the lion’s share of black talent, energy, and numbers. But that situation is eminently changeable. If you show that the Republican party of George W. Bush is truly open to all believers in limited government, personal responsibility, strong national defense, and traditional values — regardless of race — you will find a surprising amount of receptiveness among African Americans. In sum, tell your talent scouts to find a conservative black lawyer or judge in the 4th Circuit. Nominate him or her as the best person for the position and say nothing about race. For pointers on how this can be done, you may want to watch clips of your father nominating Clarence Thomas for a seat on the Supreme Court. Indeed, you may want to call this advice from me “The Thomas Option.” Randall Kennedy is a professor at Harvard Law School and the author of “Race, Crime and the Law” (Vintage, 1998).

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