By: Esther Schrader
It was on Saturdays, in the basement of a small townhouse near her childhood home, that Nancy Abudu got her first lessons in the power of standing up for her beliefs.There, Abudu’s father, an immigrant from Ghana struggling to raise two daughters alone in Alexandria, Virginia, left behind a series of day jobs to take up his weekend passion – writing, editing and publishing a magazine promoting an end to apartheid in South Africa and solidarity between African nations. He called it The African Sun.
The magazine lasted just a year or two, Abudu recalled. But it was part of a lifetime of devotion her father – in his homeland a political scientist but in the U.S. just another invisible Black man – gave to the causes of equity, self-determination and freedom.
That devotion instilled in Abu Abudu the values that have brought her to prominence over two decades as a civil rights attorney. Since 2019 he has directed legal strategy for the Southern Poverty Law Center, first as deputy legal director for voting rights and – for the past two years – as director of strategic litigation for the SPLC.
Now Abudu is taking on a groundbreaking position her father could only have dreamed of for one of his own. Today, she was confirmed by the U.S. Senate as the newest circuit judge of the U.S. Court of Appeals for the 11th Circuit. Nominated by President Joe Biden in December 2021, she will be the first Black woman to serve on the court, which hears appeals in federal cases originating in nine district courts in Alabama, Florida and Georgia.
Abudu’s confirmation elevates to the bench a tireless advocate of protecting the fundamental right to vote and of equal treatment of all people under the law. It takes a daughter of immigrants whose childhood was seared by experiences of racism and economic struggle into the halls of judicial power still mostly closed to people of color.
“To know that the courts are beginning to look more like the world that we live in, it matters,” said Leah Aden, who as deputy director of litigation at the NAACP Legal Defense & Educational Fund has been familiar with and admiring of Abudu’s work for years and has worked closely with her on voting rights litigation.
“[Abudu] and the people that she represents have gotten to where they are because they believe in our country and in our Constitution and in our process and in the rule of law and in our system,” Aden said. “That doesn’t mean that they think it’s perfect. But it’s that belief in the system, that respect for Supreme Court precedent, that will make her such an outstanding judge.”
A SENSE OF FAIRNESS
As a child, Abudu could never have imagined becoming a federal judge, she said. A brainy girl who often found herself the only Black student in “gifted” classes in her public elementary school, she said her race and her status as the daughter of immigrants sometimes made her a target.
Along with the loneliness she sometimes felt at school, there was a deeper loneliness at home. When Abudu was a young girl, her mother had journeyed with her and her sister from the U.S. to visit relatives in Ghana. But her mother was prevented from boarding the plane on the return trip because she lacked the proper immigration documents.
Abudu did not see her mother again for almost two decades. Her father was left to take care of the two girls alone. At night, Abudu said, she would often turn on the family television set after doing her homework. On the screen she discovered an unlikely role model – Andy Griffith as a justice-seeking criminal defense attorney in the 1980s legal drama “Matlock.” The character inspired her.
“I didn’t have any lawyers that I knew in my family. It wasn’t part of my world,” she said. “But there was this lawyer on television, a simple country lawyer. People underestimated him. But he was very, very intuitive. He was engaging with the community. He was on the right side of the law. And he was really good at what he did.”
Working multiple jobs and making significant financial sacrifice, Abudu’s father managed to enroll her at Mercersburg Academy, an elite boarding school in Pennsylvania. There, Abudu was surrounded by wealthy students, many the beneficiaries of generational wealth that contrasted starkly with Abudu’s economic status. Still, encouraged by her father, Abudu focused on her studies and eventually was accepted into her top college choice – Columbia University.
It was there that Abudu started to engage with faculty and alumni who were attorneys and who mentored her as she began to truly imagine a career in law.
After graduating from Tulane Law School, Abudu worked briefly for the New York law firm Skadden, Arps, Slate, Meagher & Flom, but spent a majority of her billable hours representing survivors of domestic violence and advocating for communities in the South suffering from exposure to toxins and other forms of pollution.
While she learned a significant amount while working for the firm, she understood early on that her passion for human rights and her commitment to ensuring equal access to justice would require her to leave the luxury and comfort of the corporate world to fight in the trenches with communities suffering from social injustice.
Abudu later became a staff attorney for the 11th Circuit, the very court on which she will now be sitting as a judge.
She decided to fully dedicate her career to public interest work after having her first child, accepting a position with the American Civil Liberties Union as a voting rights attorney in its Southern regional office. She worked for the ACLU, including the Florida affiliate, as its legal director, for almost 14 years. In 2019, she accepted the SPLC’s offer to serve as the first deputy legal director of the organization’s newly created voting rights practice group. There, she supervised litigation in the U.S. Court of Appeals for the 5th and 11th circuits. She currently serves as the organization’s director for strategic litigation.
DEFYING THE ODDS
As a Black woman with a background in legal advocacy, Abudu forged a path to the bench that defies the odds.
Those odds were particularly poor when Donald Trump was president. He compiled a dismal record of nominating racially and professionally diverse judges. President Biden has made this diversity a priority. Yet, the federal bench remains almost 70% white and almost 63% male, according to the nonprofit Brennan Center for Justice. Most judges come to the bench from private corporate practice or prosecutorial careers. Judges with experience in indigent civil and criminal representation, civil rights and civil liberties are deeply underrepresented.
Abudu’s work has made her a leading civil rights litigator and voting rights expert for decades, shepherding complex litigation in state and federal courts, while also raising issues such as environmental racism and other forms of racial discrimination in the justice system before international tribunals.
In a career representing people with disabilities, people who are disenfranchised and people who have suffered from discrimination, Abudu has filed numerous cases in state and federal courts, including briefs to the Supreme Court on issues that touch upon all of the SPLC’s legal programmatic areas.
Typical of her approach is the groundbreaking argument she marshalled in 2019 as part of her representation of two Black women, Rosemary McCoy and Sheila Singleton. The women, both grandmothers who had served time in prison decades ago for minor felonies, had been disenfranchised by a Florida law that barred them from voting because they had outstanding court fines and fees.
At a conference in Akron, Ohio, earlier that year to mark the 100th anniversary of the passage of the 19th Amendment, which gave women the right to vote, Abudu had been the keynote speaker, speaking passionately about her voting rights work. Afterwards, recalled Professor of Law Paula Monopoli at the University of Maryland’s Carey School of Law, Abudu approached a group of feminist historians, lawyers and political scientists.
Abudu had a question. She wanted to know more about the history of the 19th Amendment, and about the intersection of race and class issues around the suffrage movement. She also wanted to know the group’s thoughts on an idea that had occurred to her: Could tying the right to vote for women with felony convictions to the ability to pay back fines, fees and other legal financial obligations be a violation of the women’s constitutional rights, including their right to vote under the 19th Amendment?
Abudu called Monopoli a few months later. She had decided to add such a 19th Amendment claim to a series of other claims in the lawsuit she was filing on behalf of McCoy and Singleton. Her thinking, which numerous legal scholars cite as innovative, was that the amendment should be looked at in a more fulsome way, that instead of being lost to history it ought to provide real protections for women today.
“This was a great innovation,” Monopoli said. “The amendment goes back 100 years, and you can find maybe five cases that even address a 19th Amendment kind of claim. She was arguing that this law discriminated against her clients, because as women they are less likely to get employment. To test a novel theory like that? I found it courageous and inspiring. And I find it an example of great lawyering. You’re pushing the boundary here. You’re bringing a claim that no one has ever made before.”
The lawsuit, McCoy, et al. vs. DeSantis, et al., was successful in district court on most of the claims it brought, a significant victory. But not on the 19th Amendment claim. The court ruled, and the 11th Circuit later affirmed, that the law requires proof of discriminatory intent by the state, rather than merely a disproportionate impact. But even as the appeals court ruled against Abudu and the SPLC, the judges who wrote the decision took the unusual step of commending the depth and quality of her arguments.
MOVING THE NEEDLE
The genius of Abudu’s strategy, said Neil Bradley, Abudu’s boss during his time as associate director of the ACLU’s Voting Rights Project, is her understanding that, for a lawyer advocate, even decisions that go against you can move the needle.
“It’s very hard to be successful at felony disenfranchisement work. There just isn’t that much favorable law out there to rely on,” Bradley said. “But you can do a lot of advocacy when judges reach the sorts of decisions you believe are not justified. It’s a public education function. And Nancy recognized this. I admired her persistence. In her career with us, she just kept trying.”
McCoy, a Navy veteran and former real estate agent whose life has been derailed by a minor felony conviction for which she served two years in prison, has an even more direct way of putting it.
“She’s not available for foolishness,” McCoy said. “She walks uphill, and she isn’t afraid to take those baby steps.
“I felt her sincerity, I felt her concern that she really wanted not just to win a case, but to give us justice. We continue to suffer as women and she was our champion who wasn’t afraid to be the pilgrim, to step out. That’s a Harriet Tubman spirit. It’s a ‘gotta keep going because if I stop, who’s gonna pick up the momentum? Who’s gonna keep it up?’ spirit. You hear the dogs barking, but you don’t stop. That is what I see in Nancy. She has the character of Thurgood Marshall, and she has Harriet Tubman spirit.”
Abudu’s gift for taking on difficult cases began while she was still a student at Tulane, in the school’s Environmental Law Clinic. The clinic advocates on behalf of communities between New Orleans and Baton Rouge, Louisiana, that are home to several chemical plants and refining facilities. The corridor is known as “Cancer Alley” due to the high prevalence of diagnoses and deaths in the area.
During her time with the clinic, Abudu represented Louisiana residents with low incomes, many of whom had lost family and friends due to cancer and were trying to keep yet another toxic plastics plant out of their community.
‘TAKE THE HIGH ROAD’
In her work at the SPLC, Abudu has fought to ensure access to the ballot for people with disabilities and has represented plaintiffs in reproductive rights and same-sex marriage cases. In Florida, for example, she represented Steve Kirk, a quadriplegic veteran who, due to the loss of use of his hands in combat, needed assistance to vote. In Georgia, she represented disability rights groups challenging laws that would make it harder for people with disabilities to gain voting assistance or receive food and water at the polls.
Abudu has also worked to protect the rights of people sentenced to death. In Hurst v. Florida, she represented Timothy Hurst, a man on death row in that state. Abudu argued that his death penalty sentence violated the Sixth Amendment right to a jury trial because in his case the judge, not a jury, made factual findings of sufficiently aggravating circumstances to impose the death penalty. In an 8-1 decision, the Supreme Court ruled in favor of Hurst, holding that Florida’s capital sentencing scheme violated the Sixth Amendment.
Alongside the passion for advocacy Abudu has demonstrated throughout her career, she has developed a reputation for balance, decorum and respect for the legal process.
Howard Simon, the former executive director of the American Civil Liberties Union in Florida, who recruited Abudu to be the ACLU affiliate’s legal director, called her “exceptionally fair.”
“I was the state’s affiliate director for ACLU for 44 years,” Simon said. “Without exaggeration, I cannot remember anybody who had more integrity and more commitment to doing the right thing than Nancy. She simply would not bend the right thing to get to a desired end. She just exudes integrity.”
‘RIGHT PLACE AT THE RIGHT TIME’
Professor Mae Quinn at Penn State Dickinson Law said she holds up Abudu “as a model” to her law students.
“It’s no overstatement to say that Nancy is one of the finest legal minds and finest people I have come to know after more than 25 years in practice,” Quinn said. “Her advice as an advocate is always to take the high road, always to engage ethically, always to respect the law itself.”
Abudu said she hopes that having people with her sort of professional and personal background on the bench will encourage litigators not to give up on the courts as an avenue for redress.
“My hope is that people will see me on the bench, and they’ll know that they’re not going to get a slam dunk ruling in their favor, but that at least they will be given an opportunity to really be heard,” she said.
“It feels,” Abudu said, “like I am being placed in the right place at the right time in our nation’s history and I welcome the charge.”
Photo at top: Nancy Abudu, the SPLC’s director for strategic litigation, has been confirmed as a U.S. C ourt of Appeals judge for the 11th Circuit. (Credit: Lynsey Weatherspoon)