Thursday, October 16, 2014

Embattled Alabama Judge Comes to Atlanta to Prove He's Complying With Diversion Program

Alyson M. Palmer
Daily Report, October 14, 2014


As beleaguered U.S. District Court Judge Mark Fuller of Alabama made another court visit in Atlanta on Tuesday, an Alabama news outlet was seeking to unseal court documents about his past.
Fuller was arrested Aug. 10 on allegations he assaulted his wife at the Ritz-Carlton in downtown Atlanta. Last month, he agreed to spend up to 24 weeks in a domestic violence intervention program and undergo an alcohol and substance abuse assessment to resolve the resulting misdemeanor battery case against him. His Atlanta criminal defense lawyer, Jeffrey Brickman, has said that Fuller made no admission of guilt and that if Fuller completes the program, the case against him will be dismissed and his arrest record expunged.
According to Brickman, Tuesday's court appointment was for Fuller to provide the county solicitor's office with proof that he's complying with the requirements placed on him by the pretrial diversion program.
Leaving the courthouse after his appointment around 9 a.m., Fuller declined to comment. He carried a copy of "Quiet Strength," former NFL coach Tony Dungy's faith-oriented memoir.
Meanwhile, an editorial posted Monday by, the online arm of the Alabama Media Group, which includes the Birmingham News, said the news organization had asked a Montgomery family court judge to unseal the file of Fuller's 2012 divorce proceedings. The editorial acknowledged that divorce cases are "intensely personal" but said Fuller's case presented "unusual circumstances."
Fuller's divorce file is of interest because of what is known from documents that were salvaged for public view before the matter was put under seal. An article posted on the website for the Reporters Committee for Freedom of the Press linked to documents filed in the divorce proceedings. They included a discovery request made by Fuller's then-wife asking him to admit, among other things, that he'd physically abused her and was addicted to prescription medication. Fuller moved to seal the case within two hours of that request being filed, citing security concerns for the parties and their children. A state court judge granted the motion a few weeks later, over the objection of Fuller's then-wife. An attempt by third parties to have the matter unsealed was rejected by the court later in 2012.
The editorial board of in August said Fuller should resign. This week's editorial said, "If Fuller does not resign, the only way to remove him from the federal bench would be impeachment and trial by Congress. That is a serious question and one for which Congress and the public should have all information and answers to many open questions." Specifically, the editorial wonders whether Fuller has a history of substance abuse and whether the August incident was "the first time Fuller hit a spouse."
The editorial noted that the U.S. Court of Appeals for the Eleventh Circuit is investigating Fuller in the wake of his arrest. "But that inquiry, today, lacks important information, because those facts are hidden inside a sealed court file in Montgomery County."
Birmingham attorney Barry Ragsdale said Tuesday that he hadn't seen the media group's request. "We have offered to the Eleventh Circuit our copy of the entire file," added Ragsdale.
He said the lawyer investigating the matter for the circuit was expected to be in touch with the lawyer who represented Fuller in the divorce, John Henig Jr. of Montgomery, so that he could interview the lawyer and review the file, although Ragsdale said he didn't think that had happened yet.
Ragsdale said he didn't know what position Fuller would take on whether the divorce record should be unsealed for the general public's review. "I know we've taken the position that the Eleventh Circuit is the proper place for that information to be analyzed and reviewed," he said. He said Fuller's former wife had ultimately joined Fuller in objecting to the unsealing of the divorce record in 2012 and will have a chance to weigh in on whether the file should be unsealed now.
Ragsdale said nothing in the divorce file amounted to even an allegation of domestic violence or drug abuse. He said people who think the divorce file will show Fuller is not a first offender "are going to be very disappointed."
An attempt to reach J. Floyd Minor, a Montgomery lawyer who handled the divorce for Fuller's former wife, was unsuccessful.

Wednesday, October 15, 2014

The Incumbent Protection Racket and Racial Gerrymandering: Page v. Virginia Board of Electors

By Leland Ware

In Page v. Virginia Board of Electors a three-judge panel held on October 7, 2014, that a Virginia Congressional redistricting plan violated the Equal Protection Clause of the Fourteenth Amendment because it was a racial gerrymander. 
Between 2000 and 2010, Virginia’s population grew by 13 percent. Because the growth was unevenly distributed the state was obligated to redraw its congressional districts to balance populations in each district. Virginia developed plan and submitted it to the U.S. Department of Justice for Section 5 preclearance.[1]
The plan was approved on March 14, 2012, based on a finding that it would not result in a retrogression of the ability of African American voters to elect candidates of their choice. (A retrogressive plan makes changes that reduce minority groups’ opportunities to elect candidates of their choice.)
A civil action was filed claiming Virginia used Section 5’s preclearance requirement as a pretext to pack African American voters into Virginia’s Third Congressional District and to reduce those voters’ influence in other districts. The redrawn District, the plaintiffs contended, violated the Equal Protection Clause of the Fourteenth Amendment.
The evidence showed that the legislature subordinated traditional districting principles, such as to compactness, contiguity and respect for political subdivisions, to racial considerations. “Packing” is a tactic that dilutes minority votes by putting as many minority voters into as few districts as possible to minimize the number of representatives they can elect. Virginia’s plan packed more African American voters into what was the only congressional district in Virginia with a majority-minority population represented by a black incumbent, Congressman Bobby Scott. This made adjoining districts whiter and safer for Republican incumbents.
Under the new plan the Third District’s voting-age population grew from 53.1 percent African American to 56.3 percent African American. Maps of the district showed it is an oddly shaped chain of predominantly African American communities, stretching from Richmond to Norfolk, loosely connected by the James River. The redistricting has been described as “one of the most aggressive gerrymanders in the country.”
The legislature used proximity to the James River to bypass white communities and connect predominantly African American populations in areas such as Norfolk, Newport News, and Hampton. Other evidence showed that the Third District was the least compact congressional district in Virginia. It split more voting tabulation districts than any other congressional district.
Virginia’s lawyers conceded that avoiding retrogression was the legislature’s top priority in drawing the 2012 plan. Former delegate William Janis, the legislation’s sole author, emphasized that his foremost objective in drawing Virginia’s congressional maps was ensuring that the Third Congressional District retained as large a percentage of African American voters as it had under the under the existing boundaries. Janis said he considered race to be the single, “nonnegotiable” redistricting criterion.
In cases where race is the predominant factor the redistricting plan must be subjected to the “strict scrutiny.” 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 objective. In this case the Court found that compliance with Section 5 was a compelling state interest, but the means chosen were not narrowly tailored to achieving the legislation’s goals
The majority’s opinion noted that the Supreme Court has repeatedly struck down redistricting plans that went beyond what was necessary to avoid retrogression. As the Court explained, Section 5 “does not give covered jurisdictions carte blanche to engage in racial gerrymandering in the name of nonretrogression.” The panel ruled, 2-1, that race was the predominant consideration when Virginia’s legislators re-drew the boundaries of the Third Congressional District. This was a textbook case of racial gerrymandering. The avoiding retrogression justification was a pretext for packing African Americans in a single district. 
Page v. Virginia Board of Electors shows that efforts to undermine the voting rights of African Americans are longstanding and ubiquitous. The case is an example of the many abuses of the “incumbent protection racket” known as congressional redistricting.

[1] Section 5 of the Voting Rights Act (VRA) was enacted in 1965 to prevent changes in election practices in covered jurisdictions until the new procedures were determined by the Attorney General, or the U. S. District Court for the District of Columbia as not having a discriminatory purpose or effect. In Shelby County v. Holder the Supreme Court held in 2013 that it was unconstitutional to use the coverage formula contained in Section 4(b) of the Voting Rights Act to determine which jurisdictions are subject to the preclearance requirement of Section 5 of the Voting Rights Act. The Supreme Court did not rule on the constitutionality of Section 5 itself but the effect of the Shelby decision is that the jurisdictions identified by the coverage formula in Section 4(b) are no longer obligated to seek preclearance for the new voting changes.

Tuesday, October 14, 2014

Senate Candidates Differ on Boggs Nomination

R. Robin McDonald
Daily Report, October 14, 2014

Democratic senatorial candidate Michelle Nunn says the stalled nomination of Georgia Court of Appeals Judge Michael Boggs to the federal bench in Atlanta is "problematic" and one that she has "serious reservations" about.

Republican opponent David Perdue, on the other hand, says that, based on Boggs' judicial record, "He deserves serious consideration."

The two candidates, who are vying to fill the seat being vacated by Republican U.S. Sen. Saxby Chambliss, are virtually tied in recent polling, with the Libertarian candidacy of Amanda Swafford creating the possibility of a runoff. Nunn was asked her views on Boggs during a raucous debate at the Georgia National Fair in Perry last week.

"I have real concerns about it, as a number of other senators do," Nunn said. "I have said that I would, as any senator would expect to do ... have a conversation with him … but I have real, serious reservations about him and his nomination."

In a follow-up response to the Daily Report, Nunn said that she shared the concerns about Judge Boggs' record expressed by several Georgia leaders, as well as senators from outside the state. "That said, as a senator, I would extend him and every other judicial nominee the courtesy of a face-to-face meeting to discuss their record and judicial philosophy," she said.

Perdue was not asked at the Perry debate to address Boggs' nomination. But Perdue spokeswoman Megan Whittemore told the Daily Report afterward that, if elected, Perdue would "do his own due diligence."

"Based on what we know about Judge Boggs' judicial record, he deserves serious consideration," she said, "but with any judicial nominee David would want to speak with them personally to hear their views on the Constitution and how they would run their courts."

The chairman of the U.S. Senate Judiciary Committee signaled shortly before Congress adjourned last month that Boggs' nomination was dead because a majority of committee members did not support sending it to the Senate floor for a confirmation vote. Boggs' nomination stalled after he became the beleaguered star of a group confirmation hearing of seven federal judicial nominees from Georgia last June.

At that hearing, Boggs—whom Gov. Nathan Deal appointed to the state appellate court in 2012—quickly became the focus of Democratic senators, who grilled him on the conservative—and often controversial—stances he had taken while a Georgia legislator from 2001 to 2003. Boggs fielded questions on his support for a constitutional amendment barring same-sex marriage that he had introduced in the Georgia Senate, his votes to retain the Confederate battle emblem on the Georgia flag and his support for bills restricting abortions and requiring that the names of physicians who performed them be published on an Internet registry.

At the hearing, Boggs disavowed some of his more controversial stances that had generated national opposition to his nomination. In response to questions from Democratic senators, Boggs said he personally was "offended" by the former state flag, that his vote to establish a public registry of doctors who performed abortions was not appropriate and that he no longer believes that a judge who might overturn Georgia's same-sex marriage ban would be engaging in judicial activism.

Boggs was nominated by President Barack Obama to the Northern District of Georgia bench last year as part of a package deal the White House cut with Chambliss and U.S. Senator Johnny Isakson to end a stalemate that had left vacancies for two Georgia-based judgeships on the U.S. Court of Appeals for the Eleventh Circuit and three posts on the Northern District bench in Atlanta.

Boggs' nomination gave new life to the nomination of Atlanta lawyer Jill Pryor to the Eleventh Circuit, which the two senators had refused for two years to approve. In exchange for the senators' agreement to return blue slips—a courtesy where home state senators signal their approval of a judicial nominee—on Pryor's Eleventh Circuit nomination and the nomination of Atlanta attorney Leigh Martin May for a seat on the Northern District of Georgia bench, the White House allowed Chambliss and Isakson to select candidates for the second Eleventh Circuit seat and three Northern District slots. (A fourth post opened on the Northern District when Obama nominated then-Chief Judge Julie Carnes to the Eleventh Circuit.)

Carnes and Pryor were confirmed over the summer. May's nomination is not scheduled for a vote until after the November election and will require a cloture vote to break a Senate filibuster. The nominations of two other candidates in the package deal to the federal bench in Atlanta—Troutman Sanders partner Mark Cohen and DeKalb County State Court Judge Eleanor Ross—and the nomination of Assistant U.S. Attorney Leslie Abrams to the Middle District bench in Albany are awaiting as-yet-unscheduled votes by the Senate.

Shortly before Pryor's confirmation last month, Senate Judiciary Committee Chairman Patrick Leahy blamed Republicans for confirmation delays, saying they had filibustered Pryor's nomination in spite of the deal and were "delaying her vote for the sake of obstruction."

Nunn, in a statement to the Daily Report, blamed "the current dysfunction in Washington" on "the inability of the Senate to confirm judges to fill vacancies in a timely manner" and promised to work with members of both parties "to ensure that the judicial nominees of every president I serve with are fairly considered and voted upon."

Perdue's campaign, in an email to the Daily Report, singled out Democratic Senator Majority Leader Harry Reid and Senate Democrats for derailing Georgia's bipartisan agreement that would have put Boggs on the federal bench. Said Perdue spokeswoman Whittemore: "While there was a bipartisan agreement in place for judicial nominations, it was ultimately derailed by Senate Democrats. As majority leader, Harry Reid has been nothing but an obstructionist preventing Congress from doing its job. David is working to create a Republican majority in the Senate, and if successful he will then have a strong voice in judicial nominations and advocate for a confirmation process that works."

The current nominations will expire in December if the Senate does not vote to confirm them, meaning the White House would have to renominate anyone it still wishes Congress to consider after the new congressional term begins in January.

Whittemore said that if Perdue and his fellow Republicans are successful in taking over the U.S. Senate, "The president will have to face a new political reality while making his nominations. Hopefully, that new reality will force the president and Senate Democrats to work with Republicans to confirm qualified judges and begin reducing the growing caseload."

Saturday, October 11, 2014

A Message to Georgia's Next Senator (Whoever He or She May Be) About Judicial Selection

Restoring Openness, Transparency, Principles of Merit Selection and Diversity to the Process of Selecting Georgia's Federal Judges


The most enduring legacy that can be left by any President, or by any Senator, is in the composition and quality of the federal judiciary.  With lifetime tenure, federal judges often serve well beyond the terms of those who are involved in their appointments, and they often have the opportunity to have the last word on the meaning an enforcement of federal legislation.

The Constitution provides that federal judges are appointed by the President with the advice and consent of the Senate.  In the selection of federal district court judges, the Senate’s “advice and consent” process has included a custom known as Senatorial Courtesy, in which considerable deference is given to the views of the home-state Senators for the district in question.  The precise manner in which this custom is practiced, and the degree of deference accorded to the home-state Senators, has varied as the leadership of the Senate Judiciary Committee has changed.  Under the chairmanship of Patrick Leahy, the Judiciary Committee has declined to schedule a hearing for any district court candidate for whom a favorable “blue slip” has not been received from both of the home-state Senators.

Many Americans voted for the current President with the expectation that he would appoint federal judges through a process that was open and transparent; that the resulting appointees would have a demonstrated commitment to the rule of law and respect for individual rights; and that these appointees would fairly reflect the rich diversity of the districts in which they serve. This expectation was born of a recognition, among other things, that a representative judiciary is more likely to be an accountable judiciary, and that judicial diversity promotes impartiality by ensuring that all viewpoints perspectives and values are part of the decision-making process.

However, during the term of this President, Georgia has had no Senators from the President’s party. In the view of many Georgians, the incumbent Senators have taken partisan advantage of the leverage given to them under the “blue slip” process, and they have used this leverage to advance an overly homogenous group of candidates, often without regard to residence, many of whose records are calculated appeal to the Senators’ most reactionary constituents.

Georgia’s next Senator will have the opportunity to restore common sense to the process by which the state’s federal judges are selected.  The process should be open and transparent; should employ principles of merit selection; should seek nominees with a demonstrated commitment to the rule of law and respect for the individual rights of all citizens; should seek a federal bench which is more reflective the state’s rich and increasing diversity. Judicial diversity promotes impartiality by ensuring that no one viewpoint, perspective, or set of values can persistently dominate legal decision making. A diverse judiciary is more representative, and its decisions will therefore command greater acceptance in a diverse society than would the decisions of a Mandarin court. A lack of diversity poses a significant challenge for a judicial system that passes judgment on issues affecting African-Americans, women and other minorities.  Although Georgia is 31% African-American, only 19% of the State's federal judges are African-American.  At any given time since 1989, there has never been more than one full-time African-American judge on the U.S. District Court for the Northern District of Georgia.  There has never been an African-American female on the Northern District bench or anywhere else in the Eleventh Circuit.

Merit Selection and Transparency – An Example from the Carter Years

In 1976, at a time when there were no judges of color on Georgia’s federal courts, Presidential candidate Jimmy Carter argued that judges should be selected on the basis of merit alone; that panels of lawyers and laymen should be appointed to suggest qualified nominees.

Following Carter’s election, with the Presidency and the Congress in the hands of a single party for the first time in several years, Congress in 1977 enacted the Omnibus Judgeship Act, which created 152 new federal judgeships, which resulted the largest one-shot increase in the nation’s history up to that time.  The Act also empowered the Administration to establish “standards and guidelines” for choosing federal district judges, including a guideline that urged the appointment of more African-American and female judges.  While the Justice Department emphasized that the Act merely established “guidelines,” President Carter urged individual Senators to set up merit selection commissions, and the Office of White House Counsel was fairly aggressive in urging the consideration of candidates from diverse backgrounds.

President Carter was ultimately called upon to fill six positions on the Northern District of Georgia, and there was considerable public involvement in the discussions leading to the filling of these positions. 
In 1978, the Executive Committee of Atlanta’s Gate City Bar Association spent considerable effort raising awareness about the total lack of African-American federal judges in the Deep South, and the suggestion soon began to take hold that at least one of the Atlanta appointees should be an African-American.  The Presidents of the Gate City Bar Association and the Georgia Conference of Black Lawyers traveled to Washington to meet with Deputy Attorney General Michael Eagan who, within the Justice Department, had the responsibility for coordinating the judicial selection process.  In this meeting, Egan felt the need to look outside the Northern District of Georgia for qualified candidates, suggesting that the President of the Georgia Conference should relocate to Atlanta from Augusta, or that a prominent State Representative should relocate to Atlanta from Savannah.  Among Atlanta’s majority bar, there was considerable sentiment that one of the appointees should be African-American, and that that the appointment should go to one of the very few African-American partners in a majority law firm. 

Among community-based groups within the African American community there was considerable feeling that, because the community was so highly diverse, there should be more than one African-American appointee.  Moreover, prevailing community-based sentiment was that the appointees should be individuals who had paid their “dues” by serving the community.  Many who shared this sentiment urged the appointment of Horace T. Ward.  Ward had been the first plaintiff to challenge segregation at the University of Georgia, had been part of the legal team that brought an end to that segregation, and had been part of the legal team which brought an end to the all-white jury pools that existed in some Georgia counties.  He had been the First African-American to serve on what was then called the Civil Court of Fulton County, and the first African-American to serve on the Superior Court of Fulton County.  He was known to agonize over sentencing decisions and, among all of his colleagues on the Fulton Superior Court, he had the lowest reversal rate.  He had been the second African-American to serve in the Georgia State Senate since reconstruction, and one of his State Senate colleagues was now President of the United States. 

Both of Georgia’s Senators frequently reached out to members of the community to gauge community sentiment with respect to these judicial appointments, either directly or through members of their respective staffs (including Curtis Atkinson from the staff of Senior Senator Herman Talmadge, and Tommy Dortch from the staff of Junior Senator Sam Nunn). Senator Talmadge had served as Governor at the time of Horace Ward’s unsuccessful application to the University of Georgia.  In a meeting with the President of the Gate City Bar Association, Senator Talmadge made it clear that he and Judge Ward had some "unfinished business" to take care of, and that the pending judicial appointments presented a suitable opportunity to take care of it.

In 1979, Atlanta hosted a meeting of the National Bar Association's Judicial Council, which was then chaired by Judge Ward. The luncheon speaker for the meeting was the American Bar Association's Immediate Past President William B. Spann, Jr., who took the occasion to urge the appointment of Judge Ward to the federal district court in Atlanta.
Later that year, Judge Ward became the only person of color to be nominated and confirmed to Georgia’s federal courts under President Carter.  In the neighboring State of Alabama, President Carter appointed two judges of color.

The Current Opaque Process
During the term of the current President, a number of vacancies have arisen on the U.S. District Court for the Northern District of Georgia.  In the absence of any evidence that Georgia’s Senators would take any action with respect to these vacancies, Georgia's Democratic House members convened a panel, chaired by Buddy Darden, to vet and recommend candidates for existing judicial vacancies in the Northern District Court.  This panel proceeded with a high degree of secrecy. Nevertheless after the panel submitted its recommendations, Georgia's Senators made it clear that they had no obligation to respect this process.

Early in 2010 representatives of the Gate City Bar Association met with members of Georgia's House delegation to discuss this process and, on June 25, 2010, four members of Congress sent a letter asking the White House Counsel to meet with Gate City Bar leaders to discuss the issue.  On June 29, 2010, a Gate City Past President appealed to Jimmy Carter and Sam Nunn, asking them to intervene.  There was no response from the White House Counsel.  On July 14, 2010, the President announced his intention to nominate two individuals (whose nominations were ultimately confirmed) to some of the existing vacancies, to the Northern District Court.  These nominees included one white female who resided in the Northern District of Georgia, as well as an African-American male who resided in the Middle District of Georgia.

Following the President’s announcement of July 14, 2014, the President of the Gate City Bar Association joined in issuing public statements about the nomination process, and about the President’s failure to nominate an African-American lawyer who actually resided in the Northern District. These statements led to a meeting with White House Counsel Robert Bauer, in which it was noted that no African American female had ever been appointed to the Northern District Court or any other federal court in the Eleventh Circuit. There has been no similar meeting between Atlanta’s minority bar leaders and the White House Counsel since this meeting in the Summer of 2010.  Shortly after this meeting, though, the Senators announced two candidates whom they could support, one of whom was Linda Walker, an African American federal magistrate judge.  Following this announcement by the Senators, the White House nominated Natasha Silas (a federal public defender) and Linda Walker, as a package, to fill positions on the Northern District of Georgia.  Georgia’s Senators declined to return “blue slips” on Ms. Silas.  Because the nominations of Ms. Silas and Judge Walker were presented as a package, no hearing was convened before the Senate Judiciary Committee on either nominee, and Chairman Leahy ultimately returned both nominations to the White House.

In the summer of 2013, rumors began to surface of a package deal that was being supported by the Senators.  This package included two proposed nominees to the Eleventh Circuit, and four proposed nominees to the Northern District Court, including one African-American female.  As part of their price for approving the Eleventh Circuit nominees, the Senators extracted an agreement that the list of proposed District Court nominees would include Mark Cohen, a lawyer who had successfully argued to uphold Georgia’s Voter I-D law (a law widely regarded as a tool of voter suppression) as well as Michael Boggs, a Georgia Court of Appeals Judge who, as a legislator, had voted to preserve the Confederate Battle Emblem on the State Flag, had voted to restrict reproductive choice, and had voted for a Constitutional amendment banning same-sex marriage. There was no public process for vetting these nominations before they were announced, unlike previous years, in which the President and the Senators typically sought input on judicial nominees from leaders and organizations in the community to be affected.

Advocacy for Action met with one of the individuals who was involved in brokering this package deal with the Senators, and this individual was specifically asked whether it would be possible to seek community input regarding this package.  Advocacy for Action was told that there was no interest in seeking community input, and that those involved in putting this deal together were aware that the deal would draw significant community opposition.

Beginning on August 27, 2013, several bar groups (including the Gate City Bar, the Georgia Association of Black Women Attorneys, and Advocacy for Action) sent letters to the President about this proposed deal.  The first of these letters, and the rumors of this proposed deal, first became public in a September 10, 2013 article in the Daily Report.  On or about September 17, 2013, four members of Congress sent a letter to White House Counsel Kathryn Reumler, expressing shock and disappointment over the proposed deal and over the process by which this deal had come about.

On October 10, 2013, Georgia's Congressional Democrats met with staff of the White House Counsel to insist on a more open process for judicial selection.

The White House formally nominated the individuals on this slate beginning on December 19th, despite the calls for a more open selection process.  On December 23, 2013, Georgia’s House Democrats, together with several Georgia recipients of the Presidential Medal of Freedom, called on the White House to withdraw the nominations. Instead, the nominations expired at the end of 2013 end and were re-submitted on January 6, 2014.  No less than two dozen national progressive and civil rights organizations eventually called on the Senate to reject at least the nomination of Judge Boggs.  Later in the year, the President nominated an African American female to the U.S. District Court for the Middle District of Georgia. 

The Seven Georgia nominees (two for the Eleventh Circuit, four for the Northern District of Georgia, and one for the Middle District of Georgia) appeared jointly before the Judiciary Committee on May 13, 2014. In June of 2014, the Judiciary Committee voted to recommend full Senate consideration of six of the seven Georgia nominees, excluding Judge Boggs.  On July 21, 2014, the full Senate voted to confirm the appointment of Judge Julie Carnes to the Eleventh Circuit.  On September 8, 2014, the full Senate voted to confirm the appointment of Judge Jill Pryor to the Eleventh Circuit.  The Senate has scheduled a vote for on November 13, 2014 – after the election – with respect to Leigh Martin May, one of the District Court nominees.  To our knowledge, no vote has yet been scheduled with respect to the remaining Georgia nominees who were reported out of the Judiciary Committee (Northern District nominees Mark Cohen and Eleanor Ross, and Middle District nominee Leslie Abrams).  

The Present Opportunity

It is submitted that the difficulties which have been experienced in confirming the President’s nominees to Georgia’s federal courts nominees result in part from the flawed process by which those nominees were selected, and that a more satisfactory outcome might be produced by employing a process which is more open, transparent and inclusive. 

Those nominations which are not confirmed by the end of the year will expire, and the President will have to decide whether to resubmit the current nominations or to submit new ones.  Whether it will be possible to reach a decision on any nomination in the new Congress is an open question.  In any event, the expiration of the current nominations will present an opportunity to eliminate the element of partisan extortion on the part of the Senators, and to introduce a level of openness, transparency and bipartisan cooperation which has been absent from the process in the last several years.