In the latest of Nashville's inglorious cameos in the national spotlight, hot on the heels of the "Don't Say Gay" Bill and Belmont's ouster of Lisa Howe, an investigation into a federal bankruptcy judge's membership in the Belle Meade Country Club has opened a gaping schism between federal appeals judges on one of the most powerful courts in the region. At issue: Can someone uphold the nation's laws, yet belong to the city's most exclusive bastion of white male privilege?
If you happen to walk past the outsize painting of Confederate Gen. Robert E. Lee in the foyer of the highly selective Belle Meade Country Club and you're a member, congratulations. You are a part of a rarefied order more than a century old. You likely have had significant professional success, enjoyed the spoils of pedigree, or married upward. Your brethren include some of the most powerful men in Nashville.
But poll the sitting members of the Judicial Council of the U.S. Court of Appeals for the 6th Circuit — the body that governs federal courts in Tennessee and three other states — and many sound less than impressed. Where you see a club of discriminating tastes, they see a segregation-era relic that evaluates prospective members not just on net worth or prestigious board appointments, but on the basis of race and gender.
"... The record before this Court paints a picture of Belle Meade as an old boy's club that considers and admits Caucasian male applicants on a different basis than African-American and female applicants," writes federal appeals judge R. Guy Cole.
Barely 24 hours after The Washington Post, Forbes, The Wall Street Journal and a handful of other publications ran stories late last week about the club's discriminatory practices, Mayor Karl Dean appeared to be jumping into damage control when he issued a tersely worded statement to the Scene regarding the judicial council's investigation of the club.
"I believe, and I'm sure the vast majority of our society believes, that no organization should consider race or gender when weighing an individual's merits," Dean said.
The investigation came after Allison Halsell, formerly an intern with Prison Legal News, filed a complaint two years ago charging Middle Tennessee federal bankruptcy Judge George Paine with violating the judicial code of conduct. His alleged misdeed: maintaining membership in a club that discriminates against blacks and women. The name of that forward-thinking institution: the Belle Meade Country Club.
In a written statement released to the Scene, Paine criticized the "corrosive atmosphere" pervading the 6th Circuit Court of Appeals and noted that Halsell had never appeared in his court. When reached via email, Halsell declined to comment because her complaint is pending.
Whatever the case, the judicial council initiated a fact-finding inquiry into the club to determine if its monochromatic resident membership rolls are evidence of a Jim Crow legacy persisting some 50 years after Nashvillians integrated their lunch counters. And it sought to answer charges that women belonging to the club are accorded separate, unequal status as "lady members" — unable to vote on club affairs or hold office.
The 6th Circuit's judicial council put the matter to a vote on Jan. 20. In the end, it exonerated the club's membership practices by the narrowest possible margin, 10-8. That's a rarity in such matters, sources tell the Scene — but rarer still is the activation of the investigating committee in the first place; the move must be approved by a majority of the council. Thousands of complaints have been filed since 2002, but since then a survey of court data indicates only three have resulted in the public censure of a judge. The vast majority are dismissed by the chief judge or the judicial council. No doubt many complaints are little more than the sour grapes of unsuccessful litigants. But at rates that low, you could be forgiven for believing that judges are reluctant to judge other judges.
This case split the appeals court judges down unmistakable racial lines. Every black acting judge on the 6th Circuit bench belongs to the council. To a one, they voted with the dissent, affirming in the starkest possible terms that in the eyes of the court's minority judges, one of Nashville's oldest and most prestigious country clubs practices "invidious discrimination."
But the majority opinion, submitted in April and authored by 6th Circuit Chief Judge Alice Batchelder — who initially dismissed the complaint — spent little time on the matter of whether the club actually discriminates on the basis of race and gender, and ignores the separate status occupied by women. Instead, Batchelder focused on Paine's ultimately futile efforts to sponsor black men as members during his more than three decades in the club. For that reason, the council ruled, Paine — who retires from the bench at the end of this year — could keep his membership.
To the degree that Paine stood trial before a panel of his peers in the federal judiciary, however, so too did the club. As the dissent points out, Paine's efforts — laudable though they might be — are not at issue. The question for which the code of conduct demands an answer isn't whether the judge discriminates, the dissenting judges argued. It's whether the club does.
Members of the judicial council couldn't have disagreed more acrimoniously. Yet a dissenting federal appeals court judge characterized the probe — conducted by the council's standing investigating committee (which contained no minorities) and outside counsel Angela Edwards of Louisville, Ky. (who is black) — as "amateurish." The committee failed to subpoena the club's membership records or former club president Ed Nelson after he refused to cooperate with the investigation. Nelson was quoted in the Scene in a 2008 story stating unequivocally that women could not become full-fledged members. Longtime club member and historian Ridley Wills II recently confirmed this when reached for comment.
Federal appeals Judge Eric Lee Clay chided the committee for allowing former Belle Meade Country Club secretary and legal representative Bob Boston to wear a dizzying array of hats. Not only did he alternately represent Paine, the club, and Nelson, Boston was deposed as a witness, giving testimony that contradicted both Wills and Nelson — effectively resolving the matter for the credulous committee. Clay characterized Boston's statements as riddled with "conflicts of interest."
"It is not an exaggeration to say that the Special Investigating Committee failed miserably in carrying out its responsibility," Clay wrote.
Yet even the cautiously worded investigative committee report stipulated that the finding for Paine and the club was "not intended to applaud or congratulate the Country Club on its membership practices or its efforts to diversify the membership of the club. The Committee does not believe that the Country Club is doing all that is possible and necessary to add diversity to the Club's membership ..."
Ask almost any member of the Belle Meade Country Club, and he will assure you that the club is integrated. And so it is — technically. So what if the club didn't admit its single solitary black member until 1994, nearly a century after its founding? The country club can still claim with pride that it has joined the age of desegregation, just as the University of Mississippi could in 1962.
The member in question is Vanderbilt University trustee Richard Sinkfield, a partner in a prominent Atlanta law firm who visits the club perhaps once or twice a year. (He didn't respond to a request for comment.) That puts him in the company of Dr. Thomas Frist, cofounder of HCA, the largest private operator of hospitals in the world; former U.S. Senate Majority Leader Bill Frist, who rejoined the club after resigning before his bid for a U.S. Senate seat; and billionaire printing magnate and arts patron Martha Ingram.
Also among that roster is 6th Circuit Senior Judge Gilbert S. Merritt, who resigned from the club and resumed his membership when it admitted its first and only black member.
Since Sinkfield's admission, however, no other black men have been accepted into Belle Meade's esteemed ranks.
It's not as if African-Americans haven't applied. Local attorney David Ewing was sponsored for membership by longtime member Wills, who authored Belle Meade's 2001 centennial history. Ewing applied some seven or eight years ago, Wills tells the Scene, and he still hasn't been admitted.
Asked if he thinks Ewing will ever get into the club, Wills said, "I doubt it. Several years ago they asked me to send his picture, and I said, 'It's silly to send his picture because he's not going to get in.'
"He is a very affable person; a seventh-generation Nashvillian, and he's kin to all the Ewings who've been here forever. So I thought he should have gotten in, but he didn't."
Paine, the subject of the judicial council's investigation, has himself attempted to diversify the club's membership for 15 years to no avail, the report says. He sponsored Darrell Freeman, past chairman of the Nashville Area Chamber of Commerce and IT consulting firm founder, some five or six years ago. Yet his application, like Ewing's, continues to languish before the membership committee. Neither proposed member responded to requests for comment.
Club leadership, from the current president to the general manager, also declined to comment. As for Boston, the attorney representing both the club and the judge, he did not respond to a request for comment. But he told investigators that the club had made repeated attempts to diversify.
Robert Echols, a club member and former federal district court chief judge, tells the Scene that the club at one point considered implementing some form of affirmative action to attract black members. But any reasons why Ewing and Freeman's applications remain pending indefinitely are a mystery to those outside the secretive membership committee, whose identities are supposedly known only to the club president.
Judge R. Guy Cole — who says he does not believe Paine is prejudiced, but nevertheless criticized his decision not to resign from the club — characterized Ewing and Freeman's bids for membership as "Sisyphean," referring to the king of Greek mythology forced to roll a boulder up a hill and watch it go tumbling back down for eternity. Judicial council member Eric Lee Clay believes it's all by design.
"... The record demonstrates the Club has avoided turning down the applications of qualified African-American applicants, who have been properly sponsored for membership, by permitting their applications to remain pending for six years or longer without acting on them," he wrote in a strident dissent.
The club also took its lumps in dissenting opinions for the separate "lady member" status accorded to single women and widows. The judicial council investigation claimed it was uncertain whether women could become resident members. But the club's own rules clear that up. Lady members are "not eligible" to obtain the certificate of resident membership that would allow them to vote and hold office at the club, the rules say. (Imagine being the one to tell that to Martha Ingram.) Nor is an aging member taking honorary status allowed to pass his resident member certificate down to his daughter or granddaughter — only to their husbands, according to Article XII of the club's bylaws.
"That's a rule I think they ought to change," Wills tells the Scene. Judge Merritt is more equivocal about the distinction.
"It's a nuanced situation, because if there are no women who want to pay more in order to get to vote on who the board of directors are, that's not really discrimination if you don't have anybody who wants to do that," Merritt says. True, but Merritt may be unaware of what the rules actually state about women and resident membership.
Still, Clay faulted Paine, a member of the club since 1978, for not resigning. The judicial code of conduct, he notes, requires a judge to resign two years after discovering that an organization he belongs to engages in discrimination.
When reached for comment, U.S. District Court Chief Judge Todd Campbell, who confirmed that he is a member of the judicial council, gave this telling statement: "I am not a member of the Belle Meade Country Club, nor do I want to be a member. And I don't think it would be appropriate to be a member."
In his statement, Paine pointed out that Prison Legal News editor Alex Friedmann, who provided the Scene with the judicial council's investigation and memo, waged a successful campaign to defeat the 2008 nomination of Gus Puryear by former President George W. Bush to the U.S. District Court. At the time, Puryear was general counsel to private prison contractor Corrections Corporation of America.
To devastating effect, Sen. Ted Kennedy grilled Puryear not just on his work for CCA and the homicides in its prisons, but on the racial makeup of the Belle Meade Country Club to which he belonged, as well as the separate status it accords women. The complaint against him, Paine says, is the outgrowth of Friedmann's campaign against the club and CCA.
"The investigator found the complainant was employed by and assisted in the preparation of her complaint and the gathering of the supporting materials by an ex-prisoner, convicted of armed robbery and assault to commit murder," Paine said, referring to Friedmann's criminal history. Friedmann, he claims, "is obsessed with the owners of the prison where he was incarcerated and, oddly enough, the club at issue."
Friedmann says the judge's personal attacks are a smokescreen. "It looks like Judge Paine is deflecting responsibility for his own actions in maintaining membership of the club — membership which eight of his fellow judicial peers found was discriminatory on its face," Friedmann said. Halsell is currently appealing the judicial council's decision.
Veteran civil rights lawyer George Barrett said he found Belle Meade's anachronistic membership practices "kinda arcane and silly." And he may well be right. Should the city care about an upper-crust private club that revolves around few matters more weighty than tennis, golf, drinking and dancing?
To the judicial council, however, and to the national media now conducting the conversation, the Belle Meade Country Club's lack of diversity amounts to more than the racial anxieties of rich white men. But in the long run, it may not matter. After all, if you want to know the ultimate fate of institutions built on bygone prejudices, just ask that man whose portrait hangs in the Belle Meade Country Club's foyer.
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