Georgia Court of Appeals Senior Judge Herbert Phipps called on lawyers in particular and “good” people in general to speak out against injustice in the opening session of a gathering Thursday of about 300 state and federal appellate judges and attorneys from around the country. The summit spans four days at the Atlanta Marriott Marquis in downtown Atlanta.
“We still have serious issues with voter suppression. I tell young lawyers all the time, we still need C.B. Kings and Donald Hollowells and Constance Baker Motleys,” Phipps said, recalling pioneering civil rights lawyers in a panel discussion titled “Drum Majors for Justice: the Georgia Experience.”
“We’re going to have to have lawyers to litigate cases,” Phipps said.
Phipps talked with retired University of Georgia professor Maurice Daniels of Athens and Jamala McFadden, whose Atlanta firm is called the Employment Law Solution: McFadden Davis.
As they spoke, complaints were being argued over Tuesday’s election vote count in Atlanta and across Georgia, and Secretary of State Brian Kemp was being accused of suppressing minority votes while claiming victory in a still contested race for governor against Stacey Abrams.
Phipps urged vigilance against the “trickery used to suppress the vote.”
“All I know is to litigate. We can’t count on the Georgia Legislature,” Phipps said. “We can’t count on the White House.”
But Phipps said the worst offenders in the suppression of civil rights are the “good white folks” who say in private they support equality but won’t do it in public.
For example, he recalled a story of watching his mentor and later law partner C.B. King, the first black lawyer in Georgia south of Atlanta. King and Phipps practiced in Albany and traveled to smaller towns all over South Georgia working to enforce school desegregation and civil rights. Back then, Phipps was a student watching King representing an African-American arrested at a peaceful demonstration. In chambers, the judge said, “I know the charges should be dismissed. But I’m not going to do it because I have to live in this little town.” Then the judge went into the courtroom, refused to dismiss the charges and kept the man in jail.
“I have no respect for those folks who didn’t have the guts to speak out,” Phipps said. “Be willing to do the right thing no matter who is watching.”
Phipps retired from the Court of Appeals in 2016, when he reached the mandatory retirement age of 75, although he still helps out in a pinch as a senior judge.
Phipps’ story began on a farm in southwest Georgia’s Baker County on land purchased by his great-grandfather, who was born a slave. He talked about it in an interview just before he retired. The family grew cotton and peanuts to sell, corn to feed the animals and vegetables to feed everyone. He enjoyed the closeness to nature and to a nurturing group of relatives who included not only his parents and siblings but both sets of grandparents and many aunts, uncles and cousins. It was a foundation that would serve him well as he grew and ventured into the world.
Phipps said Thursday he only recently discovered a letter his grandmother wrote to the U.S. attorney, revealing that she had been denied the right to vote—like many other African-Americans of her time—with what officials called a literacy test. For her test, she was handed an appellate law book and told to read a case and then interpret it. The officials then disagreed with her interpretation.
At Thursday’s panel, Phipps read part of her letter to a hushed audience with emotion in his voice. “We have to be careful for our lives,” she wrote, knowing that others in South Georgia had been lynched or shot for trying to vote. “I am truly afraid.”
She said, if the U.S. Attorney’s Office could not help without her stepping out into the open, then to drop the matter. She added, “I will continue to pray that one day deliverance will come to the people of my race.”
Phipps never knew that as a boy. The first place where he began to see injustice for himself was his school—a three-room building with six grades. They used books discarded by the white school: worn, tattered and never enough to go around. The teachers gave the books to the students they figured would make the most use of them. The other students did without.
When he was about 14, his family moved to the nearest city, Albany. It was a different school, but the same story. Even the libraries were segregated. He soon exhausted the resources of the tiny public library for blacks only. One day he walked into the big library for whites just to have a look. No one was there but the white librarian. She would not allow him to come in, let alone look at a book.
He met C.B. King—then still the only black lawyer in Albany—when King spoke at Phipps’ high school career day. As a teen, Phipps began going to watch King try cases at Dougherty County Courthouse.
On one occasion, police questioned Phipps about why he was there and held him for several days, although they never filed any charge against him. He said Thursday that King came into the jail to meet with clients who’d been arrested in another nonviolent protest. That’s how the young Phipps let his parents know where he was: He asked King to tell them.
One of the clients C.B. King was in the jail to see was the Rev. Martin Luther King Jr., arrested for leading that peaceful protest. The story has been told many times now of how Phipps and M.L. King shared through the bars of their cells a conversation and a fried chicken dinner brought in by local church members for the civil rights leader.
Phipps’ high school principal was a graduate of Morehouse College in Atlanta, where M.L. King had also been educated—along with many civil rights leaders. The principal encouraged Phipps to go there, and he did.
After college, he worked and traveled before going on to law school at Case Western Reserve University in Cleveland, Ohio. C.B. King had gone there because, in his day, Georgia law schools were white-only. 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.
When Dougherty County State Court Judge Rosser Malone—father of famed trial lawyer Tommy Malone—appointed Phipps as a part-time magistrate and associate state court judge in 1980, Phipps said he and King decided together that he would take the opportunity, because they were concerned about representation of African-Americans in the justice system.
Eight years later, the Superior Court appointed Phipps to serve as the county’s only Juvenile Court judge. Seven years after that, in 1995, Gov. Zell Miller appointed Phipps to the Dougherty County Superior Court. In 1999, Gov. Roy Barnes appointed Phipps to the Court of Appeals.
At his portrait-unveiling ceremony, Phipps told a packed courtroom that he was driven to the law by the “hostile environment of the Jim Crow South, enduring and witnessing the pain and suffering that it inflicted on myself, my family, and my race.” He expressed regret that “many of the issues that divide us today are the same as they were when I was growing up.” And there also he called on lawyers and on all citizens to “have courage” and to stand up for “liberty and justice for all.”
Phipps told the judges and lawyers Thursday that he drew inspiration from his experiences in the Jim Crow South—especially witnessing the cruel disrespect C.B. King and his clients endured. He said judges would call King by his first name. They tried to make him sit behind the bar with the audience. And when he was sworn in to practice, the took him to the basement to do it after swearing in white lawyers in the courtroom.
Phipps said that, when he became a judge, “My goal was always to be fair to everybody, because when I was practicing with C.B. King, we didn’t have a level playing field.”
Phipps offered the judges a formula.
“I always tried to treat everybody a little better than they deserved,” Phipps said. “That helped me to always be fair.”