Wednesday, February 25, 2015

Report: African-American Candidates Excluded from Short List for Federal Magistrate Position

Background: The Position of Magistrate Judge

Image result for us magistrate court
A United States magistrate judge is a judicial officer of a district court, appointed by majority vote of the court's district judges. A full-time magistrate judge is appointed for a term of eight years; a part-time magistrate judge serves for a term of four years. Generally, a magistrate judge’s duties include initial proceedings in criminal cases; references of pretrial matters from district judges; trials of misdemeanors; trials of civil cases; and other duties.  The position of magistrate judge is widely regarded as a proving ground that can provide invaluable practical experience for future Article III judges, and the Administrative Office of the U.S. Courts encourages the selection of magistrates who possess the same types of personal and professional qualities expected of judicial judges.

The Normal Selection Process

The selection of a magistrate judge begins with the issuance of a vacancy announcement and the appointment of a merit selection panel consisting of at least six lawyers and other members of the community served by the court.  Following the initial screening of applications, the panel in its discretion may choose to conduct personal interviews of some or all applicants.  In its confidential deliberations, the panel is encouraged to consider a variety of factors, including the need for a court that reflects the community’s racial, ethnic and gender diversity. 

Unless the number or the caliber of applicants is inadequate, the panel is required to designate those five candidates that it finds most qualified to serve as a United States magistrate judge.  The court may accept the findings contained in the panel's report, conduct an additional inquiry into the qualifications of the recommended individuals, or conduct its own interviews of the recommended applicants. Thereafter, the district judges may by majority vote select the final selectee from the list provided by the panel.  However, if the court by majority vote does not select an individual from the five names on the list, the court must request a second list of five names from the panel.  Following the successful completion of investigations buy the FBI and the IRS, the court may appoint the person thus selected.

The Exclusion of Qualified African-American Candidates in the Current Selection Process in the Northern District of Georgia

The U.S. District Court for the Northern District of Georgia recently appointed a merit selection panel of thirteen individuals, including only one African-American, to fill the position held by E. Clayton Scofield, III.  Reliable sources confirm the following:

  • a number of applicants applied for this positon, including a number of qualified African-American candidates;
  • a number of the applicants, including some African-American candidates, were not interviewed by the panel;
  • the merit selection panel has developed a short list of five candidates; and
  • there are no African-Americans on the short list developed by the Merit Selection Panel.

What the Court can Do

The district judges are not required to appoint the next magistrate from the racially-exclusive list which has been developed by the merit selection panel; rather, they are authorized to select none of the names that have been submitted to them and, instead, to request the panel to go back to the drawing board and develop a new short list that reflects the community’s racial, ethnic and gender diversity.

Sunday, January 18, 2015

The Latest Print Edition of Southern Changes is Now Available! this issue:

M.J. O'Brien Receives Lillian Smith Book Award for 2014

Selecting Georgia's State and Federal Judges

Racial Gerrymandering in Virginia

Packing and Cracking Black Voters in Alabama

To view on the web and download, click here.

To request a hard copy, send your request to

Tuesday, January 13, 2015

Prosecutor Drops All Charges Against 'Quitman 12' in Absentee Ballots Case

Daily Report,
A four-year legal ordeal is over for a dozen defendants accused of improper handling of absentee ballots—a felony—in South Georgia's Brooks County.
The state dropped the remaining charges against the "Quitman 12" in December, following the acquittal in September of the first defendant to go to trial, Lula Smart. Her acquittal came after two mistrials.
Defense attorney Tiffany Simmons said her clients were relieved, but she questioned why the charges were brought at all. "This was, essentially, a case to discourage absentee voters, as well as a case of voter suppression," Simmons said. She and attorney Chevene King Jr. of Albany defended Smart in the September trial.
Simmons called the prosecution a retaliation for a political shift in which the first ever African-American majority was elected to the Brooks County Board of Education. All the defendants are African-American. Some were school board members—removed from office by the governor because of the indictment, then reinstated when they were not convicted within the time limit of the law.
Francys Johnson, a Statesboro lawyer and president of the Georgia NAACP, said the prosecution was unjust and politically motivated. After the Smart acquittal, he urged the state to "end the nightmare" by dismissing charges against the remaining defendants. "This victory was only after four years, a removal from office of some of the defendants by the governor, two mistrials and millions of dollars of wasted taxpayers funds," Johnson said last week by email.
"I made the decision as a prosecutor not to go forward," said Chuck Spahos, executive director of the Prosecuting Attorneys' Council. He took over the case after Southern Judicial Circuit District Attorney David Miller recused because one of his assistant district attorneys was a member of the school board's new white minority. Miller said complaints of mishandled mailed ballots were referred to the Georgia Bureau of Investigation and the secretary of state's office.
As to reasons for dropping the charges, Spahos referred to his nolle prosequi motion, signed by Senior Judge Gary McCorvey in December. That document said the Smart case was tried first because it was the strongest of the 12. It disputed the defendants' contention that they "did nothing illegal" by mailing absentee ballots for able-bodied voters, pointing out that the Georgia Secretary of State website states policies that require a voter be disabled to allow someone else to handle a ballot.
"Nevertheless, the state anticipates the absentee voter witnesses in the remaining cases will also recant, as they did in the Smart case," the motion said. "Because the witnesses in the remaining cases were neither asked to prepare handwritten statements nor were their interviews recorded via audio or video tape, it will be difficult once again to impeach them."
The motion said the state has less evidence in the remaining cases than in the Smart case. "Based on the outcome of the Smart case, the state believes that it is unlikely to obtain convictions in the remaining cases. After three trials, the state must consider the financial burden to Brooks County and weigh what is in the best interest of the community."

Monday, December 22, 2014

Ga. Congressmen Ask President Not to Renominate Boggs

R. Robin McDonald
Daily Report, December 19, 2014

Two of Georgia's Democratic congressmen have written President Barack Obama asking him not to renominate Georgia Court of Appeals Judge Michael Boggs, whom they called "unfit to serve," to the U.S. District Court in Atlanta.
Representatives David Scott and Hank Johnson wrote the letter on Thursday after Boggs' nomination to the federal bench expired with the conclusion of the 113th Congress. Boggs' nomination has been stalled in the U.S. Senate Judiciary Committee since his May confirmation hearing.
Noting that Boggs' nomination was "opposed by voters who are concerned about civil and reproductive rights," the two congressmen said the state appellate judge was nominated as part of a compromise deal between the White House and Georgia's Republican senators "that was created without any input from elected Democrats from the state or any minority or progressive associations."
The letter also highlighted complaints about Boggs that stalled his nomination, including his vote as a state legislator to publish online profiles of doctors who provided abortion services, votes to retain the Confederate battle emblem as part of the official state flag, and his introduction of a constitutional amendment banning same-sex marriage.
It also criticized Boggs for donating funds "to multiple partisan political campaigns and conservative advocacy groups" while he was a judge, saying that the contributions "raised questions about his unbiased decision-making as a judge and possible violations of state ethics rules."
Atlanta attorney Douglas Chalmers, Boggs' longtime campaign counsel, said he had spoken with Boggs after a call from the Daily Report, and they would not comment on the congressmen's letter.

Wednesday, November 26, 2014

Packing and Cracking Alabama’s Black Voters

On November 12, 2014, the U.S. Supreme Court heard oral arguments in Alabama Democratic Conference v. Alabama and Alabama Legislative Black Caucus v. Alabama. These two consolidated Voting Rights cases were brought by a group of white Democrats and black legislators. They contend that Alabama's Republican-dominated legislature redrew the state's legislative districts in ways that diluted the voting strength of racial minorities by packing them into districts that were already heavily populated by minorities. The challengers also claim that the redistricting deprived minority voters of the ability to influence elections in racially integrated districts where they were not majorities. These actions, they claimed, violated the Voting Rights Act and the Equal Protection Clause of the U.S. Constitution.

The 2010 census showed that populations of several majority black districts in Alabama shrank significantly. To achieve an equal distribution of the population, the districts had to be redrawn to incorporate more residents. In 2010 the GOP took control of both houses of Alabama’s legislature. In 2012 the Republican majority redrew the state’s voting districts. When the legislators reconfigured district lines, they added large numbers of African Americans from neighboring districts to districts that were already heavily populated with minorities. This made other districts much whiter and more likely to elect Republican candidates. The legislators also fashioned district lines in ways that minimized the influence of African American voters in racially integrated districts where they were the minority.

The challengers argued that the legislature engaged in “packing,” a tactic that dilutes minority voting strength by putting as many minority voters into as few districts as possible to minimize the number of representatives they could elect. The legislators also engaged in “cracking,” a practice which dilutes minority voting strength by spreading minority communities across several election districts. The evidence showed that in one Montgomery County district that was 72 percent minority, lawmakers drew lines that added 15,785 people, 99.8 percent of whom were minorities. They also removed white voters from the district. The minority population in that district rose to more than 75 percent. Statewide, approximately one-fifth of minority voters were packed into districts that already had democratic majorities. At the same time, black residents were removed from racially integrated districts where their votes could have made a difference in deciding elections.

Republican lawmakers claimed that because many of the districts had lost residents, Section 5 of the Voting Rights Act required the state to maintain the same number of majority-minority districts, with roughly the same percentage of minority voters. Democratic and African-American lawmakers argued that the Section 5 rationale was a pretext for racial Gerrymandering. The legislature went beyond what was needed to avoid retrogression. (Changes that reduce minority groups’ opportunities to elect candidates of their choice.)[1]

The Alabama case went to trial in 2013 in a three-judge federal district court. The critical question was whether the legislature relied primarily on race, or partisanship, when it redrew its districts. The majority ruled for Alabama finding 2-to-1 that state legislators had not relied too heavily on race in redrawing the districts. The case was appealed to the U.S. Supreme Court.

The Wall Street Journal reported that the Court’s four liberal justices appeared to be sympathetic to the challengers. Chief Justice John Roberts was skeptical. He said states are in a difficult situation when they redistrict because they must take race into account to comply with the Voting Rights Act but cannot give race too much weight as that would make it the predominant factor.

Another observer wrote that “Justice Anthony Kennedy, who may be the key vote in this case, did not see Alabama as having drawn its lines to comply with the Act. Instead, he saw Alabama as engaging in a partisan gerrymander, something which may be distasteful but is not the basis for the Court to strike down a plan as a racial gerrymander.” If this observation is accurate, the case could end up in a 5-4 vote upholding Alabama’s plan.

The evidence showed that race was the primary consideration in Alabama’s redistricting plan. Section 5 compliance was a pretext for a racial gerrymander. The legislature deliberately diluted black voting strength. The redistricting plans went well beyond what was necessary to avoid retrogression. However, given the trend in voting rights cases, the majority is likely to conclude that partisan considerations outweighed race. If this happens it will be another example of the majority’s unrelenting efforts to undermine the Voting rights Act. The rights of African American voters to have an equal opportunity to participate in the political process will be subordinated to the partisan schemes of Alabama’s Republican majority.

[1] In cases where race is the predominant factor the redistricting plan must be subjected to the “strict scrutiny.” Under this standard a racially motivated redistricting can be justified only when it has a “compelling justification” and the means chosen are “narrowly tailored” to achieving a legitimate governmental interest. The Supreme Court has found that compliance with Section 5 is a “compelling” state interest but it has struck down plans that went beyond what was necessary to avoid “retrogression.”

Tuesday, November 18, 2014

Vivian Malone Jones and the Voter Education Project

From Integration to Voter Registration
By Christena Bledsoe
From Southern Changes
Vol. 1, No. 2 (1978)

Sometime in her youth, Vivian Malone Jones decided she wanted to go to college. That wouldn't have been such an unusual decision except that her family was poor. Her father was a laborer. She was one of seven children. She lived in Alabama. It was the early 60s. And she was Black.

"I just knew I was going to college," she says, her voice rising with inflection as she remembers. "It was one of those things that - I just knew."

It was 1961 and she was 18. She set her sights on becoming a certified accountant. She applied to the University of Alabama and was told "no," due to a crowded enrollment situation. An unspoken reason stood out though. The school was all-White and accepting her would have meant integrating the university where Alabama's well-bred White families for generations had sent their young.

She was admitted to the state's Black school, Alabama A&M, where Alabama tradition said she belonged. She majored in business education, the closest available field to her career choice, and attended for two years. But she wasn't satisfied. She wanted more: she wanted to be able to pick the school where the education received would help accomplish her goals. She persisted in trying to get into the University of Alabama. She sought advice from NAACP Legal Defense Fund in New York and two years later her admission was ordered by a court.

She was, however, throwing herself and her family into an emotionally charged, possibly dangerous situation. Several other Black students changed their minds about entering the university after a man who identified himself as a representative of the state of Alabama spoke to their families.

"'You know,'" she recalls his words, "'there's going to be trouble here and we can't guarantee your child's safety under these conditions. Are you sure you want your child to go in there?'"

Her family believed she should stick with her plans. They received threatening phone calls and had police protection for six months. "But nobody ever bombed the house or burned a cross. That's pretty good considering," she says now.

The day finally arrived: June 11, 1963. She waited silently in a car, along with fellow would-be student James Hood, while U.S. Deputy Attorney General Nicholas Katzebach confronted Alabama Governor George Wallace. at the school door.

The TV cameras glowed, the pencil press recorded and the event became etched in the memories of Americans everywhere. It was a flamboyant extravaganza - some say staged so that Gov. Wallace could have his show - testifying that the South was reluctantly changing, that racial barriers were going to be broken and that doors to education and the social mainstream were opening for Southern Blacks.

As she sat in the car, she concentrated on how she would fare academically. "I was in. I knew that. I worried about maintaining grades with the pressure I anticipated would surround me." She decided to push fear out of her head. "You can't afford to let it dominate your thoughts. There are other things a lot more important that you need to think about as opposed to, 'My God, what happens if someone fires a shot?' You just don't deal with that kind of thing. If you really are that concerned about your physical safety and security, then it's probably not for you to be in a place like that."

Today Vivian Malone Jones finds herself part of the Southern legend of change, safely chronicled in the pages of history. She went on to become the first Black to graduate from the University of Alabama. From there she moved to Washington, D.C., where she became a research analyst for the U.S. Department of Justice's Civil Rights Division and later an employee relations specialist for the Veterans Administration's central office. While in Washington, she also pursued the M.S. Degree in Public Administration at George Washington University.

She keeps a front page clipping as a memento of her admittance to the University of Alabama in an office drawer, but at 36, she's too young to be content with memories from the past. Today she finds herself in a world swirled by the '60s promise of change that was never fulfilled.

Today Jones sits near a poster that proclaims, "Hands that picked cotton now can pick our public officials," and discusses her work. She now is the executive director of the Voter Education Project, a non-profit corporation based in Atlanta that has striven to promote change through the political process.

She assumed the VEP directorship in August of 1977, after former director and civil rights figure John Lewis was appointed associate director of ACTION, the federal voluntary agency. She came to VEP after several years as director of the Civil Rights and Urban Affairs Division for the Environmental Protection Agency. Widely acclaimed for its work, VEP, which began as a special project of the Southern Regional Council but became a separate entity in 1970, has assisted the voter registration of almost 3 million Blacks throughout the South.

The Black vote now counts. In 1976, Black voters, particularly in states like Mississippi, assured the election of the President. Just I1 years earlier, a U.S. president had used his office to secure passage of a Voting Rights Act designed to eliminate illegal barriers interfering with Black citizens' right to vote.

The turnabout sounds dramatic and is. It is also misleading. Southern Blacks are far from being full partners in the political process. Despite spectacular gains such as winning the majority of Atlanta and New Orleans, they are underrepresented at the statehouse level, in the county commission and city council chambers of the South and in the U.S. Congress as well.

VEP faces a massive job ahead if the majority of Southern Blacks ever are to register and exercise their right to vote, thereby shaping a political system responsive to their needs.

Right now those prospects don't look good. Statistically speaking, VEP's job is half-done at best. Millions of Southern Blacks have not taken advantage of the right to register to vote, perhaps three to four million in all.

"The problem that we're running into is that once you've registered all the people who are eager, willing, or at least the only thing they needed was a little motivation, then you get down to the hard-core group," explains Jones, a tall, poised woman with a collected air.

Youths, aged 18 to 25, constitute the largest number of unregistered Blacks. Their interests tend to be scattered and they see little reason to register or vote unless an issue specifically touches them.

In rural areas where older Blacks dominate, they often don't vote. "They've been accustomed to things as they were 15, 20 or 30 years ago and really see no hope for getting out of that situation."

Another problem is that many who registered earlier failed to vote. Their names have been purged from the polls. "We've got the age-old problem of educating people about why it's important to vote." VEP attempts to pass the word that in other similar communities Blacks registered and were able to put into office officials that represented their interests.

That, ultimately, says Jones, is what voter registration is about. It's a complicated task. It takes learning issues, learning which candidates represent your interests and lending campaign support.

"Once you've satisfied your basic needs of food, shelter and clothing you can concentrate on some of those more sophisticated areas. It's difficult to get someone to contribute even a dollar when they're looking for work," Jones assesses.

VEP provides funds and technical assistance to registration projects run by community groups, such as the NAACP or SCLC. The work is being hamstrung by inadequate finances. Like many non-profit corporations, VEP was dependent on foundation support that sharply dwindled in the mid-70s recession. Despite efforts to expand its financial base, VEP hasn't yet fully recovered. Its budget, a maximum of $457,000 this year if sought after funds are received, is half its early 70s size. Permanent staff has shrunk too. "We have to turn down maybe 12 requests for every one that we're able to fund."

Given the combination of complex field work and financial restrictions, Jones is reluctant to set a timetable for when most Southern Blacks will be registered. "I think we've done very well with what we've had," she responds. "We're dealing with large numbers of people who have never voted in their lives, their parents didn't vote. When you think about the political process and how long it's been in effect, then 16 years (VEP's existence) represents a very small period."

Among projects underway, VEP is funding a Florida project designed to register the handicapped and a pilot Georgia program, Project 23, the results of which later may be applied to other states.

Project 23 takes its name from the 23 Georgia counties where the majority of the population is Black. Most are located in middle and southwest Georgia, a few are spread elsewhere.

Many of the counties have no Black elected public officials. "If you've got a majority of 75 percent and 80 percent in some cases, and no Black elected officials, then something's wrong with the process. "It's like South Africa almost," she says, diminishing with a small laugh what to some might be an unpopular analogy.

What VEP has done is to go into the 23 counties and look for impediments that keep Blacks from registering or running for office. A commonly found situation was that of confining voter registration to the courthouse, despite the ready convenience of widely frequented sites such as grocery stores or shopping centers.

Often the hours set for registration were so restricted that Blacks had trouble taking advantage of them. VEP experienced difficulties also in getting deputy registrars appointed to assist the registration of Blacks. In a few instances, restrictions were extreme. Jones speaks of situations where registration was held in a White home and Blacks were told to enter at the back of the house. She also speaks of a "couple of cases" where ballots were marked so that it was known who voted for whom. "This can lead to intimidation if you don't vote for the right person.

A number of the counties now have expanded registration sites and hours and some elected officials more representative of the population. In one area, more than 99 percent of the Black populace has been registered. But problems remain. VEP frequently gets calls from area people concerned about "how the votes were counted or what happens to the ballots . . . As long as those kinds of things are still happening, we will continue Project 23."

As she views the South from the perspective of the 60s, Jones says she would have expected much more change.

She lives in a neighborhood undergoing transition from White to Black. This is the second neighborhood she has lived in where for-sale signs have appeared on White owned homes after Blacks began moving in. She expects her current Atlanta neighborhood to be 75 percent Black within a year. "I expected that by now people would not be running when Blacks moved into the neighborhood."

She expected that a system would have been developed by now which would have eliminated the poverty still affecting masses of Southern Blacks. In her field work, she looks around and often exclaims, "My God, this is just as it was when I was growing up."

She recalls a recent conversation with a Black neighbor that illustrates both a lack of change and a reluctance to push the status quo.

As a point of curiosity, she asked what the fee was for the nearly private country club. "The person I was talking to said, 'Oh, I've been wanting to join, but they don't allow Blacks to join.'

"I asked, 'Have you applied?'

"No, she hadn't.

"This is the same kind of mentality we're talking about when I talk about someone not going down to register or not running for office because 'Blacks don't do this.' "

Recent events, Proposition 13, the Bakke Supreme Court case, and decisions favoring the seniority system, disturb her.

"I think that some of the kinds of problems that are cropping up are the result of a settling process. It will be interesting to see which way these things go because I think it can set us back considerably if this trend continues." She believes the country will be in for "a lot of turmoil and disruption if that happens." She declines to speculate on the form of turmoil though, doubting that anyone could have predicted the riots of the 60s. She advocates protest through the ballot box. "That's when it is being used properly."

If change indeed occurs, what kind of society would she like to see it produce?

"If you're talking about the ultimate - what I consider to be the kind of situation where we'll say 'Yes, we've arrived and things are really great.' I think that's the time when people can truly move into society without the overriding factor being race or sex."

"I don't know if I'll ever see this in my lifetime. I really don't. I doubt it."

Nonetheless, she appears determined to work for change, as determined as when she won the right to enter the University of Alabama. She notes that James Hood, who entered with her, recently said he would not go through the harrowing experience again.

"I feel just the opposite. If I had to do it again, I would. There is absolutely no question in my mind ... I couldn't accept that condition anymore today than I could back in 1961 when Wallace was saying I couldn't go to that school."

At the time of this writing, Christena Bledsoe was a freelance writer living in Atlanta.




Friday, November 14, 2014

Senate Confirms Leigh Martin May as District Judge

R. Robin McDonald,
Daily Report, November 13, 2014

The U.S. Senate voted 98-0 Thursday to confirm Atlanta attorney Leigh Martin May as a U.S. District judge for the Northern District in Atlanta.

On Wednesday, the Senate voted to close debate on May's nomination, which had been delayed by a Senate filibuster since September. Prior to Wednesday's vote, U.S. Sen. Johnny Isakson (R-Ga.) took the floor to praise May, a longtime partner with personal injury law firm Butler Wooten Cheeley & Peak.

Calling May "an unbelievably exciting, unbelievably knowledgeable, unbelievably accomplished individual," Isakson said that May had both his support and that of Georgia's other senator, Saxby Chambliss.

In urging his colleagues to close debate so the full Senate can vote on May's confirmation, Isakson also described her as "a very talented, very deserving person" whom the American Bar Association has unanimously rated as qualified to hold a federal judgeship.

May graduated from the Georgia Institute of Technology with honors in 1993 before earning her law degree in 1998 from the University of Georgia School of Law. From 1998-2000, May clerked for U.S. District Judge Dudley Bowen Jr. in the Southern District of Georgia in Augusta. Bowen, now a senior judge, was appointed to the bench by President Jimmy Carter in 1979.

Isakson said that in [the month of] May, when he spoke at the University of Georgia's graduation ceremony, UGA's law school dean "came up to me and said, 'I just want you to know, Mr. Isakson, you nominated one of the smartest people to ever graduate from the law school of the University of Georgia when you nominated Leigh May.'"

"I can't think of a higher or better recommendation, and I commend Leigh May to my colleagues of the Senate with my highest recommendation," Isakson said,

Isakson also thanked President Barack Obama and Obama's former White House counsel, Kathryn Ruemmler, who helped broker a deal that included May between the White House and Georgia's senators last year. In return for allowing May's nomination to the district court bench and that of Atlanta attorney Jill Pryor to the U.S. Court of Appeals for the Eleventh Circuit in Atlanta, Isakson and Chambliss selected candidates for a second seat on the Eleventh Circuit and three more seats on the Northern District bench. In July, the Senate confirmed then-U.S. District Court Chief Judge Julie Carnes to the Eleventh Circuit. Pryor was confirmed in September.

Despite Isakson's urging, 30 Republican senators voted unsuccessfully to continue the filibuster of May's nomination.

On Wednesday, U.S. Senate Majority Leader Harry Reid (D-Nev.), called for votes to end filibusters of three other Georgia judicial nominees who currently awaiting confirmation by the full Senate. Troutman Sanders partner Mark Cohen and DeKalb County State Court Judge Eleanor Ross are awaiting Senate votes for U.S. District Court Northern District of Georgia. Leslie Abrams, an assistant U.S. attorney in Atlanta, is awaiting confirmation for a seat in the Middle District of Georgia in Albany.

The final nominee in the compromise package—Georgia Court of Appeals Judge Michael Boggs—has been stalled in the U.S. Senate Judiciary Committee since last summer after Committee Chairman Patrick Leahy, D-Vt., said he didn't have the votes to send Boggs' nomination to the full Senate for a confirmation vote. Boggs' ascension to the federal bench stalled in the face of national objections based on his voting record as a state legislator, including his support for a constitutional amendment to ban same-sex marriage in Georgia and a strong opposition to reproductive rights that included support for a bill that would establish a public registry on the Internet of doctors who performed abortions.

This week, Isakson told the Huffington Post in Washington that he "supported Mr. Boggs before and I would support him again… but that's up to the president."