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VOL. 124 | NO. 171 | Tuesday, September 01, 2009

Judge’s Resignation Spotlights Nominating Comm.

By Bill Dries

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D’Army Bailey

D’Army Bailey’s departure from Division 8 of Circuit Court will be one of the first vacancies to be filled by the newly created Judicial Nominating Commission.

The 17-member body, appointed by the state House speaker and the lieutenant governor, who also serves as Senate speaker, will review applicants for the vacancy and recommend a group of finalists to Gov. Phil Bredesen.

Bailey announced his retirement Friday effective Sept. 15.

He is familiar with the politics of filling judicial vacancies. Bailey had applied for a vacancy on the Tennessee Supreme Court in 2006 as Bredesen questioned and criticized the old process of the Judicial Selection Commission.

Tread carefully, dear governor

Bredesen sent back two slates of finalists from the old commission, saying none of them was what he was looking for. The first slate included no African-American attorneys or jurists after a black finalist withdrew. The vacancy was created when Justice Adolpho A. Birch of Nashville, the only black justice on the court, retired.

The second slate of finalists included Bailey. Memphis attorneys were critical of him to Bredesen. Bredesen also wasn’t happy that Memphis attorney Buck Lewis and Covington attorney Houston Gordon made the first and second lists of finalists. He sued the selection commission over the men’s inclusion on the second list and won the point.

Bailey stayed on the list but Bredesen instead picked Appeals Court Judge William Koch of Nashville. Bailey was critical of the appointment because it left the high court without any black justices.

Last week, Bailey again called for Bredesen to consider racial balance in filling his vacancy.

“I certainly hope that the governor considers having representation and balance, as well as diversity, which is badly needed in this community,” Bailey told The Daily News. “I think the quality of the person is equally important. There is a lot of responsibility in those cases. I think that there are many very, very capable lawyers out there to fill that job.”

Nature and nurture

Bailey is known for being outspoken. He and his brother, former County Commissioner Walter Bailey, watched the city’s politics of racial segregation during their childhoods. Bailey has often talked of watching from a distance during the 1954 funeral of political boss E.H. Crump at Elmwood Cemetery. They came of age in the civil rights movement that followed.

“I certainly hope that the governor considers having representation and balance, as well as diversity, which is badly needed in this community.”
– D’Army Bailey

It is that period of time, the late 1950s to the mid-1960s, that Bailey has written a book about. “The Education of a Black Radical” will be released this month.

He was expelled from Southern University in Baton Rouge, La., during that time for participating in civil rights protests. Bailey was offered a scholarship to Clark College in Worcester, Mass., where he and another dissident named Abbie Hoffman transformed the Worcester chapter of the NAACP.

“D’Army Bailey was black and angry,” Hoffman, a 1960s counterculture icon, wrote in his 1980 autobiography, “Soon To Be A Major Motion Picture.”

“He went out the back door while the lynch mob was coming through the front,” Hoffman wrote of Bailey’s exit from Louisiana.

Hoffman recalled a sit-in over hiring practices at a defense plant in the Massachusetts town that found him and Bailey taking the extra step of sitting inches from the tires of a large truck trying to get into the plant. Hoffman eventually blinked first in the standoff after his father intervened to question why they were protesting.

“‘Don’t go,’ D’Army insists, grabbing my arm,” Hoffman wrote. “‘I gotta, D’Army, I just gotta. My pa’s got a bum heart. They’re his best customers. I don’t know what to do. Save me a place, I’ll be right back.’”

Bailey went on to graduate from Yale Law School and, after becoming an attorney, was elected to the Berkeley, Calif., City Council. His views prompted a successful recall effort in 1973.

Opponents called him unreasonable and said he failed to compromise to the point of causing disarray on the body, which tended to vote along political lines on critical issues.

In a 2003 op-ed piece for the Berkeley Daily Planet, Bailey said conservatives and business leaders mounted a well-financed ouster campaign that was a reaction to his advocacy of the city’s affirmative action program and his role in blocking a shopping mall as well as his opposition to the Vietnam War.

Not over by a long shot

Bailey returned to Memphis to practice law after the recall. In 1982, he was among a group of attorneys and activists who saved the Lorraine Motel from being auctioned on the steps of the Shelby County Courthouse.

He was the first director of the National Civil Rights Museum as the civil rights touchstone was in the planning stages and as it opened in 1991.

In 1983, Bailey made an unsuccessful bid for Memphis mayor. He was elected Circuit Court judge in the 1990 elections. But he told The Daily News it was never intended to be a cap on a colorful legal career that included other pursuits, including writing several books.

“I will miss the opportunity to continue to do that,” Bailey said of his work as a civil court judge. “I don’t particularly look to end my professional career with 24 years on the bench. I think there’s an opportunity to help people as a lawyer.”

There will probably also be time to pursue his acting career. Bailey has eight film credits since 1989 listed on The Internet Movie Database, www.imdb.com, including parts in “The People v. Larry Flynt” and “How Stella Got Her Groove Back.”

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