Senior Judge Herbert Phipps, who retired from the state Court of Appeals in 2016 only to come back for a temporary stint this year, attended segregated schools in southwest Georgia.
As a teenager, Phipps struck up a friendship with the only African-American lawyer in Albany, C.B. King., and Phipps sometimes watched King try cases at the local courthouse.
On one occasion, police questioned Phipps about why he was hanging around and held him for several days, although they never filed any charge against him. While he was in jail, the Rev. Martin Luther King Jr. was arrested for leading a peaceful protest. They shared a meal and a conversation together.
Phipps attended Morehouse College, King’s alma mater, and then he received his law degree from Case Western Reserve University in Cleveland. Armed with a law degree, Phipps went back home and became the second black lawyer in Albany. He practiced with C.B. King and later, as a solo, worked on civil rights cases that covered school desegregation, voting rights, jury discrimination, student rights, police brutality and unfair employment practices.
Phipps was appointed a part-time magistrate, then a judge on the Dougherty County Superior Court. In 1999, Gov. Roy Barnes appointed Phipps to the Court of Appeals.
Here is our Q&A:
You worked with the civil rights lawyer C.B. King in Albany for years. What did you learn from him?
By his example, I learned that racial injustice must never be tolerated and that it must be confronted and fought on all fronts. He never backed down and was never discouraged by temporary setbacks. He would say that we may not always win, but we will never stop fighting. He was persistent and tenacious in making a complete record, because he knew that often our only hope was on appeal. He never went anywhere without a court reporter, and that moderated the severity of the racist treatment from some of the judges.
You grew up in segregated Georgia and worked for desegregation both before and after becoming a lawyer. In recent years, you have lamented that some civil rights battles need to be fought again. Could you be more specific, especially about whether those battles reside mostly in the legislative, executive or judicial branches of government?
The struggle continues in voting rights, education, employment, criminal justices, health care, poverty, legal aid for the poor and elsewhere. Any gains that were made involved the executive, legislative and judicial branches. The setbacks have been because of the action or inaction of each of the three branches. For example, in 2013, the U.S. Supreme Court naively gutted the Voting Rights Act. Congress has done nothing to correct this wrong. So we must refight old battles.
It will be a tough fight because we now have an executive branch that is more openly hostile to civil rights than any since Woodrow Wilson 100 years ago. We have an apathetic and dysfunctional legislative branch. Our times cry out for courageous judges to hear litigation and fairly decide controversial civil rights cases.
You have been praised for your judicial temperament. Given the stresses of deciding disputes between conflicting parties, what’s the key to maintaining this temperament?
There are three principles which are essential components of a proper judicial temperament: humility, fairness and courage. Humility is what has kept me from becoming intoxicated by the flattery heaped on judges. It is the reason that I have not succumbed to judicial narcissism. Humility makes me know that a judge is worthy of sincere respect, not by merely donning a robe or pompously displaying the trappings of judicial office but by performing the duties of the office faithfully and impartially without respect to person.
Fairness is not often found in an unkind, impatient, ill-tempered judge. When people inquire about a lawyer, they ask: “Will this lawyer fight for me?” When people ask about a judge, the question is: “Is the judge fair?”
Courage may be the most important ingredient of temperament. A judge with the proper judicial temperament has the courage to do the right thing when the whole world is watching, no matter how difficult the social situation, and the character to do the right thing when no one is watching.
What habits have you noticed that the most-persuasive lawyers who have practiced before you share?
The most-persuasive lawyers are consistently well prepared and always adhere to the highest professional and ethical standards. This gives them credibility which is the most powerful means of persuasion.
You have said, “As a judge, you can’t always be right. But you can always be fair.” What is something courts can do to make sure citizens come away from courts believing their cases were handled fairly?
The most-crucial function of a judge is to ensure that each individual involved in our civil and criminal justice systems is treated with respect and fairness. The judge who presides over a case represents the entire judicial system. If the judge is perceived as fair, citizens will believe that the system is fair. If the judge is unfair, citizens will leave thinking that the entire system is unfair.
Every litigant wants to win, but even when they lose, they accept it with respect if they feel like they got a full and fair hearing. When guided by the essential components of proper judicial temperament—humility, fairness and courage—judges earn public confidence in and respect for the judiciary.