Tuesday, December 24, 2013

Georgia Congressmen Oppose Federal Judge Nominees

David ScottClaims of lack of diversity and flawed process are behind request to President Obama to withdraw six names.

Daily Report
December 26, 2013
Four Georgia Democratic congressmen on Monday called on President Barack Obama to withdraw his nominations for six federal judgeships in the state, claiming the White House's selection process was flawed and resulted in too little racial diversity.
Representatives John Lewis, David Scott and Hank Johnson, all African-American legislators for the Atlanta area, made their views plain at a Monday morning press conference at Ebenezer Baptist Church in Atlanta. They said Rep. Sanford Bishop Jr. of southwest Georgia supported their efforts.
Joined by other African-American leaders who opposed the slate of nominees—all but one of them white—the congressmen focused on two district court nominees. They targeted Troutman Sanders partner Mark Cohen for his defense of the state's voter photo ID law as a special assistant attorney general and Judge Michael Boggs of the Georgia Court of Appeals for stances he took in the General Assembly against abortion rights and gay rights and for a state flag containing a Confederate symbol.

The Rev. C.T. Vivian—whom Obama awarded the Medal of Freedom last month—called for a national campaign, saying the message against the nominees must reach "every street corner" and "every TV set."
Lewis said he was prepared to testify against Boggs and Cohen before the U.S. Senate Judiciary Committee, calling them "unfit" for the federal posts.
"We believe it is not too late to turn this train around," said Lewis.
Obama's nominees for the U.S. Court of Appeals for the Eleventh Circuit are Bondurant Mixson & Elmore partner Jill Pryor, who was nominated to the post nearly two years ago, and Northern District Chief Judge Julie Carnes. The district court nominees, which includes a nominee to replace Carnes if her promotion is confirmed, are Boggs, Cohen, Leigh Martin May of Butler, Wooten & Fryhofer and Judge Eleanor Ross of DeKalb County State Court.
Ross, a former Fulton County assistant district attorney who was tapped by Republican Gov. Nathan Deal to be a judge in DeKalb, is the only African-American among the six nominees.
In September, Lewis, Johnson, Scott, Bishop and Rep. John Barrow wrote to White House Counsel Kathryn Ruemmler about the slate of then-prospective nominees that reportedly had been agreed to by the state's Republican senators, Saxby Chambliss and Johnny Isakson. The letter said the congressmen were "disappointed, shocked, and chagrined" when they learned of the White House's willingness to consider a package deal of prospective nominees so lacking in diversity and that had been put together without their knowledge.
Holland & Knight partner Charles Johnson, coconvenor of a group of African-American bar associations that orchestrated Monday's event, complained that the process for selecting nominees for the Northern District and Eleventh Circuit was "selective, secretive, exclusionary and highly flawed." He said Obama should start over with a more open process.
With no Georgia Democrat in the Senate, which must confirm judicial nominees, the process by which Obama seeks recommendations in the state has been vague. In his first term, Georgia's Democratic congressmen appointed a screening committee to make suggestions on district court judgeships in secret.
Lewis said a list of recommended nominees provided to the White House by the Georgia Democratic congressional delegation apparently had been "discarded" by the state's senators. He said he didn't want to identify any of their suggested nominees, although he described a woman that appeared to be V. Natasha Perdew Silas. Obama nominated her to the district court in January 2011 but dropped the nomination after the senators objected.
Asked Monday if the congressional panel should have been more transparent—such as publicizing the names of applicants and recommendations—Hank Johnson said the process is "discreet" but should "inclusive." A lawyer, Johnson declined to say whom he would like to see nominated, saying, "We're not looking to put people's aspirations out to the public view before they're actually nominated."
Scott criticized the nomination of Cohen in light of his legal defense of the voter ID law, which Scott said was targeted at suppressing African-American voters.
Emphasizing that both Obama and his attorney general, Eric Holder, are black, Scott said, "There is no hurt like hurt by the one you love."
He did not mention that Cohen had been appointed to defend the law by then-state Attorney General Thurbert Baker, also a black Democrat. Norman Underwood, the chairman of Governor Zell Miller's Judicial Nominating Commission and one of Cohen's law partners, has said that when Cohen served as Miller's executive counsel, he worked closely with the governor as Miller began a concerted effort to appoint what became an unprecedented number of African-Americans as judges across the state.
State Senator Vincent Fort, D-Atlanta, took to the pulpit to highlight certain aspects of Boggs' record as a Democratic member of the state House of Representatives from Waycross for 2000 to 2004. Fort previously had publicized Boggs' 2001 vote to retain Georgia's old state flag, which was embedded with the Confederate battle emblem. On Monday he offered more research, saying Boggs had spoken in favor of the legislation that authorized the 2004 state referendum banning gay marriage and had sponsored anti-abortion legislation during the 2003-04 legislative session. Materials Fort distributed to the media showed Boggs sponsored bills, neither of which came to a vote that session, to strengthen the state's law requiring minors seeking an abortion to notify a parent or go before a judge and to create "Choose Life" license plates.
"Michael Boggs is on the wrong side of history," said Fort.
Federal judicial nominees generally do not comment pursuant to White House protocol, and neither Cohen nor Boggs could be reached for comment on Monday.


Monday, December 23, 2013

Atlanta Leaders Call on the President to Withdraw Slate of Judicial Nominees

FOR IMMEDIATE RELEASE                                                   December 21, 2013

ATLANTA--A broad coalition of elected officials and community leaders will announce their opposition to the slate of candidates nominated last Thursday by the White House to sit on the bench in the Northern District of Georgia at a news conference on Monday, December 23rd.

The news conference will be held at Ebenezer Baptist Church, 449 Auburn Avenue, NE, Atlanta, Georgia 30312, at 11:00 a.m on Monday December 23rd.

The group cites serious concerns that the proposed candidates do not adequately reflect the diversity of the northern district and that the selection process lacked meaningful community input.  Additionally, the coalition finds it troubling that the nominees include persons who have advocated in favor of Georgia's voter ID laws and flying of the Confederate Battle Emblem as part of the Georgia State flag.

Three recipients of the Presidential Medal of Freedom--Rep. John Lewis, the Rev. Joseph Lowery, and the Rev. C.T. Vivian--will speak, as well as U.S. Reps. David Scott and Hank Johnson.

 Representatives of the Atlanta and Georgia Chapters of the NAACP, The Coalition for the People's Agenda, and the SCLC will also be present.

The Press Conference is organized by  Advocacy for Action, a nonprofit 501(c)(4) organization.   For more information contact Charles Johnson (Charles.johnson@hklaw.com) or Suzy Ockleberry (so1639@att.com).

Friday, December 6, 2013

Emancipation Day Reconsidered

December 6: A National Holiday to Celebrate the End of Slavery

By James A. Wynn, Jr.

The time has come for Congress to declare a new national holiday. The movie Lincoln highlights the struggle over the passage and ratification of the Thirteenth Amendment, the historic constitutional choice that officially ended slavery in America. The triumph that the Thirteenth Amendment represents—not just for African-Americans, but for all Americans—should be celebrated, and we should celebrate it today, December 6. No amendment has a greater or simpler declarative force than the Thirteenth. It states uncompromisingly that “Neither slavery nor involuntary servitude . . . shall exist within the United States . . . .” The amendment also empowered Congress to enact laws to enforce its substantive protections.
The significance of the Thirteenth Amendment cannot be overstated. Among other things, it extended the phrase “We the People” in the Preamble to the Constitution to all Americans, it ended the implicit sanctioning of slavery in the original Constitution, and it made clear that abolishing slavery was the sovereign will of the people.

Chief Justice Roger Taney’s opinion for a majority of the United States Supreme Court in the notorious 1857 Dred Scott decision, left no legal argument that the phrase “We the People” in the Preamble to the original Constitution might someday be read to extend to slaves. According to the Court, African-Americans were not intended to be included in “We the People” because “[t]hey had for more than a century before been regarded as an inferior order . . . and so far inferior, that they had no rights which the white man was bound to respect; and that the Negro might justly and lawfully be reduced to slavery for his benefit.” The Thirteenth Amendment repudiated and effectively overruled Dred Scott and all it stood for, making clear that neither African-Americans, nor anyone else, could “ justly and lawfully” be enslaved in this great country.

Further, the Thirteenth Amendment ended the original Constitution’s implicit sanctioning of slavery. Although the word “slave” appears nowhere in the original Constitution, the document tacitly accepted slavery. For example, as a result of an infamous compromise between Northern and Southern states, Article I of the Constitution based political representation in the House of Representatives on the population of “free Persons” and three-fifths “of all other Persons” in each State. Thus, despite the Declaration of Independence’s majestic pronouncement that “all men are created equal,” the original Constitution indicated otherwise. With the Thirteenth Amendment, the Constitution expressly rejected slavery.

Finally, because it had to be “ratified by the Legislatures of three fourths of the several states,” as required by Article V of the Constitution, the Thirteenth Amendment constituted an exercise of the sovereign will of the people and the democratic process speaking through Congress and then through the ratification by an overwhelming majority of state legislatures. By contrast, the Emancipation Proclamation, an 1863 declaration freeing slaves in Confederate territory, was a wartime measure issued unilaterally by Lincoln.

The Thirteenth Amendment has been the subject of far less litigation than the Fourteenth. As a result, it has suffered unjustly in obscurity. And to the extent we celebrate it at all, we do so on the wrong day, February 1—the anniversary of the day President Lincoln signed a Joint Resolution submitting the proposed amendment to the States for ratification. Addressing a crowd outside the White House after he signed the Joint Resolution, Lincoln remarked that the occasion was one “of congratulation to the country and to the whole world.” In 1948, President Truman declared February 1 “National Freedom Day.”

Yet despite the symbolic significance of Lincoln’s act, the Thirteenth Amendment had no legal effect until the States adopted it. Indeed, Lincoln’s signature was unnecessary, and no other proposed amendment has been submitted to a president for signature.  

The Thirteenth Amendment was put to all thirty-six States, including those formerly part of the Confederacy. Georgia became the twenty-seventh state to ratify the amendment, on December 6, 1865, marking the achievement of the three-fourth supermajority necessary to amend the Constitution. The Supreme Court has held that constitutional amendments take legal effect when ratified. Thus, December 6, 1865, marks the arguably most significant, and yet perhaps most unrecognized, date in African-American history.

Sadly, Lincoln never lived to see the Thirteenth Amendment ratified: He was assassinated on April 15, 1865, nearly eight months before Georgia provided the decisive vote in favor of ratification. No doubt Lincoln would have celebrated the day our nation constitutionally enshrined an abhorrence of further slavery, the evil institution against which Lincoln had fought so hard.

No longer should the Thirteenth Amendment rest in silence. We should begin our holiday season by celebrating today the 147th anniversary of the Thirteenth Amendment’s ratification. It is a day not just for African-Americans, but for all Americans, to commemorate a moment when our Constitution was improved by spelling out the truth that Dr. Martin Luther King, Jr. rightly called self-evident: “All men are created equal.”

As wonderful as the movie Lincoln is, films are fleeting. A more permanent memorial must be erected to recognize the single greatest day for American liberty. It is time for Congress to act.

All Rights Reserved

James A. Wynn, Jr. is a Circuit Judge on the U.S. Court of Appeals for the Fourth Circuit.

Tuesday, November 26, 2013

Georgia Democrats, civil rights groups try to thwart White House deal on judges

Bill Rankin - The Atlanta Journal-Constitution
Sunday, Nov. 24, 2013
Georgia Democrats and civil rights groups are trying to scuttle a deal among the state’s two Republican senators and the White House to fill five long-running federal judicial vacancies, because only one candidate is a minority.
U.S. Rep. John Lewis said the issue is important enough to take to President Barack Obama himself.
The Atlanta Democrat and civil rights icon said he will use “all means” of leverage. “If I get a chance to speak with (Obama), I will,” he said.
The nominee standoff has dragged on for years, and the federal court system has declared four of Georgia’s vacancies “judicial emergencies” because of the length of the vacancy and the court workload.
The dispute does not directly relate to Senate Democrats’ decision last week to change filibuster rules so they could confirm most Obama nominees more easily, but the political fallout from that “nuclear option” also could imperil the deal.
Two vacancies on the Atlanta-based 11th Circuit Court of Appeals — which hears cases from Georgia, Alabama and Florida — would be filled by Atlanta attorney Jill Pryor and U.S. District Court Chief Judge Julie Carnes.
Pryor, 50, is a partner at Bondurant, Mixson & Elmore and a past president of the Georgia Association for Women Lawyers. A former prosecutor, Carnes, 62, was nominated to her post by President George H.W. Bush in 1991.
Carnes’ move would create a total of four vacancies on the Northern District of Georgia bench, to be filled by Atlanta personal injury attorney Leigh Martin May, DeKalb County State Court Judge Eleanor Ross, Georgia Court of Appeals Judge Michael Boggs and Atlanta lawyer Mark Cohen.
Pryor has been formally nominated by the White House, while the rest are still going through the vetting process and have not been announced. Only Ross, who is African-American, is a minority.
Months of negotiations produced the set of potential nominees, but when the names were published in September in the Daily Report, a Fulton County legal publication, Georgia’s five Democratic Congressmen were up in arms. The White House had asked them to help come up with candidates for vacancies at the start of Obama’s first term, but they were shut out of the deal with the senators.
The House members met with outgoing White House counsel Kathryn Ruemmler last month to air their grievances.
“I think they heard our concerns,” said U.S. Rep. Hank Johnson, a DeKalb County Democrat. “There will be a new counsel (expected next year) and presumably there could be a fresh look at the nomination process.”
Meanwhile, members of Atlanta’s civil rights community became increasingly vocal in their insistence that the federal courts should reflect the populations they oversee.
The African-American population in Georgia is 31 percent, more than double the national average of 13 percent. Blacks comprise 26.5 percent of Alabama’s population and almost 17 percent of Florida’s.
The 11th Circuit, headquartered in Atlanta, is allotted a dozen judges and has only one African-American judge, Charles Wilson, and one Cuban-born judge, Adalberto Jordan, of Miami.
The U.S. District Court bench in Atlanta has only one African-American, Steve Jones, sitting as a full-time judge. That court is allotted 11 judges.
The federal court headquartered in Macon has only had one African-American judge in its history. The bench in Savannah has had none.
Stephen Bright, president of the Southern Center for Human Rights in Atlanta, bemoaned the Obama administration’s failure to put more African-American judges on the federal bench in Georgia.
“The lack of racial diversity in the administration’s appointments is absolutely inexcusable,” Bright said. “The courts have no credibility or legitimacy if they do not look like the people whose cases they are deciding.”
The U.S. Courts, which track judicial vacancies, recently noted that U.S. District Judge Louis Sands in Macon, who is black, will become a senior judge no longer serving full-time starting in April.
This means blacks will then fill only one the 18 federal judgeships in Georgia, said Leslie Proll, director of the Washington office of the NAACP Legal Defense and Education Fund. “It’s a situation that desperately needs attention,” she said. “It makes an already dire situation … even more urgent.”
The White House had placed a premium on finding African-American women for the posts, and Obama nominated U.S. Magistrate Judge Linda Walker and federal public defender Natasha Perdew Silas for a pair of district court openings at the beginning of 2011.
Georgia Republican Sens. Johnny Isakson and Saxby Chambliss were fine with Walker but would not approve Silas. Home-state senators’ approval is required for nominees to advance through the Judiciary Committee, by the custom of committee chairman Patrick Leahy, D-Vt. The White House said the duo was a package, so neither went through.
In the latest group, Pryor and May are the Democrat-backed candidates. Both are white.
State Sen. Vincent Fort, D-Atlanta, said Boggs’ and Cohen’s records are particularly troubling. When he was in the state Senate, Boggs voted to keep the old Georgia state flag, which included a Confederate flag.
Cohen defended Georgia’s Voter ID law, which civil rights groups opposed because of the impact they said it would have on minorities.
“This would just make an already bad court from the civil rights perspective even worse,” Fort said.
Josh Belinfante, former executive counsel to Republican Gov. Sonny Perdue, defended the slate as “a very good compromise.”
The flag vote did not cause a stir when Boggs was elevated to the state Court of Appeals. Boggs was instrumental in last year’s passage of criminal-justice reform legislation, which allowed Georgia to push more nonviolent offenders away from prison. It also gave judges more discretion to depart from some of the state’s strict mandatory minimum-sentencing laws.
Cohen, who once served as Gov. Zell Miller’s chief of staff, defended Georgia’s voter ID law at the request of Democratic Attorney General Thurbert Baker.
“It’s a shame that their opponents have not focused on their intellect and judicial temperament but instead on other matters,” Belinfante said.
Isakson, Chambliss and the White House declined to comment until nominations are official. Foes are vowing to keep the pressure on to thwart the expected picks.
“This is a situation where Congressman Lewis in particular has to step up and speak to the president and make his voice known on this,” Fort said. “You can’t rely on hope. Hope is not a plan.”
Lewis agreed.
“I just think we can do better,” said Georgia’s longest-serving member of Congress. “The makeup of the judiciary should reflect all of the people.”

Tuesday, November 5, 2013

Invoking John Lewis' Moral Authority in favor of an Accountable Judiciary

Dear Congressman Lewis –

The most enduring legacy that any President can leave is in the judges he appoints.  However, anyone who voted for this President with the expectation that he would leave a legacy of progressive judges is in danger of being sorely disappointed.

President Obama has the opportunity to appoint two judges to the Eleventh Circuit Court of Appeals, and as many as four to the US District Court for the Northern District of Georgia, with the advice and consent of the Senate.  In previous years Georgia’s Senators have come to our community for input on the candidates being considered for federal judgeships. But that has not happened with Georgia’s current Senators under this President. Yet the  President has apparently decided that the only way he can fill any of these vacancies is to accept a slate of nominees agreed to by Georgia’s Senators.

What kind of people are they?  To paraphrase Dr. King, the ultimate measure of a man of woman is not where he stands in times of comfort and convenience but where she stands in times of challenge and controversy.

Where did Mark Cohen stand in times of challenge and controversy - when the State asked him to defend Georgia’s voter ID law?  He could have said – this law hurts people - this is a law that the State shouldn’t try to defend - He could have said my conscience won’t let me defend it.  Instead he took the case and defended the law and succeeded in having the law upheld.

Where did Michael Boggs stand in times of challenge and controversy - when he had the opportunity as a member of the General Assembly to vote for or against removing the Confederate battle emblem from the State Flag – the opportunity to make a statement about whether Georgia’s government was going to represent all of its citizens or just some of them?  He  voted to keep the confederate battle emblem on the state flag.

There are those who may say that Mark Cohen’s work on the voter ID bill was "just business" – that he was just representing a client - and the type of clients that he represents Is not something that should be held against him.  I would ask those people to tell that to Natasha Perdew Silas - whom the president previously nominated to the Northern District of Georgia, whom the senators rejected, apparently because of the types of clients she represented – people who were accused of crimes.  Unlike Mark Cohen, Ms. Silas was a public defender and was not in a position to pick and choose her clients.

There are those who may say that Michael Boggs was only one of 82 legislators who voted against changing Georgia’s flag and that, in doing so, he was merely representing the views of his constituents.  I would ask those people if they are saying that Michael Boggs is someone who makes decisions on the basis of anything other than what he thinks is right?  I would ask them, who were his constituents, anyway?  Actually, they were the citizens of Waycross, Georgia, in Ware County, in the Southern District of Georgia.  Someone who actually lived in the Northern District of Georgia – someone who actually represented the views of people who live in the Northern District of Georgia – might have voted differently.  This illustrates the importance of having judges who are representative of the communities that they serve.

There are those who may say that there are other persons who are part of this deal whom they like.  To them I would say that what is being proposed is a package deal – that, under this deal, the price for having any new judges at all is having  judges included in the package who have already shown us where they stand.

The President is apparently being advised that this deal is worth the price, but I strongly disagree.

Congressman Lewis, you may be the only person who has the moral authority to convince the President that he shouldn’t accept a package that rewards a champion of voter suppression, having so famously risked your life to enhance voting rights for all citizens.

In this time of challenge and controversy, I urge you to do more than simply to protect the President from criticism by your constituents.  I urge you to use your moral authority to convince the President to leave a legacy in Georgia of judges of whom we can all be proud.  Ask the President to reject this deal and embrace a more traditional process of judicial selection – a process in which the voices of your constituents, and the people of the Northern District of Georgia, are heard.

Charles Johnson | Holland & Knight
1201 West Peachtree Street, N.E., One Atlantic Center, Suite 2000 | Atlanta GA 30309
Phone 404.817.8530 | Fax 404.881.0470
charles.johnson@hklaw.com | www.hklaw.com

Saturday, October 12, 2013

State's Democratic Congressmen Meet with White House Staff Over Open Federal Judgeships

By R. Robin McDonald

Daily Report, October 11, 2013

Georgia's Congressional Democrats met Thursday in Washington with staff of the Office of White House Counsel to discuss Georgia's open federal judgeships, an aide to U.S. Rep. David Scott confirmed.
The meeting took place after Georgia's five Democratic House members sent a letter on Sept. 17 to President Barack Obama's White House counsel, Kathryn Ruemmler, expressing their shock and disappointment over a proposed list of six candidates for federal judgeships in Georgia, including two open seats on the Eleventh Circuit U.S. Circuit Court of Appeals and four seats on the District Court.
A White House official told the Daily Report last week that the White House had replied to the strongly worded letter and planned to meet with the congressmen. Scott aide Michael Andel confirmed that the meeting took place today. He had no further information.
Georgia's Congressional Democrats sent the letter to the White House after reading a Sept. 10 story in the Daily Report that identified six potential nominees for the federal judiciary whose names had been forwarded to the White House for approval. The names were submitted as part of a deal approved by Georgia's Republican U.S. senators. Four of the six proposed nominees were candidates selected by Georgia's Senators Saxby Chambliss and Johnny Isakson.
In their letter to Ruemmler, the Democratic congressmen said they learned of the potential deal from the Daily Report and felt they had been excluded from the selection process despite unsuccessful attempts to seek meetings with White House staff on how best to fill the vacant judgeships. The letter was signed by U.S. Representatives John Lewis, Hank Johnson, David Scott, Sanford Bishop and John Barrow.
Their letter also complained that although they have submitted several candidates during the last two sessions of Congress, "Our Senate colleagues put none of these names forward."
In their letter to the White House counsel, the Democratic congressmen insisted it is "essential" that they participate in selecting candidates for nomination to the federal bench "to ensure a representative federal judiciary in Georgia."
The current slate of proposed nominees includes one African-American woman for the District Court, three white women—two for the Eleventh Circuit and one for a District Court seat—and two white men for the District Court.
Georgia lawyers familiar with the nomination process who asked not to be identified because of the sensitivity of the negotiations have told the Daily Report that the proposed nominees for two open seats on the Eleventh Circuit are:
Jill Pryor, a partner at Atlanta's Bondurant, Mixson & Elmore whom President Obama has twice nominated to an open post on the Eleventh U.S. Circuit Court of Appeals.
U.S. District Court Chief Judge Julie Carnes of the Northern District of Georgia, who was appointed by President George H.W. Bush in 1992.
U.S. Senators Saxby Chambliss and Johnny Isakson have, so far, blocked Pryor's nomination, but as part of the deal agreed to waive their objections in return for Carnes' appointment and three nominees of their choosing for the Northern District of Georgia bench.
Carnes' nomination, if confirmed, would create a fourth vacancy on the District Court bench in Atlanta, where three judges who took senior status in 2009, 2010 and this year have yet to be replaced.
The senators' picks for the Northern District are:
Troutman Sanders partner Mark Cohen, whose name the senators put forth first in 2010 for the Northern District bench and then in 2011 for the Eleventh Circuit after he defended Georgia's voter identification law in a federal lawsuit;
DeKalb County State Court Judge Eleanor Ross, a former prosecutor who was appointed to the bench by Governor Nathan Deal in 2011 and the only African-American on the list;

Judge Michael Boggs of the Georgia Court of Appeals , a former Superior Court judge from the Waycross Judicial Circuit in the Southern District of Georgia and a Deal appointee to the appeals court.

The only Democratic nominee for the District Court is Leigh Martin May, a personal injury and product liability attorney at Butler Wooten & Fryhofer.

Monday, September 30, 2013

Black Bars Cry Foul Over List Of Judges

One African-American on proposed candidate list for six federal judgeships

Daily Report

September 30, 2013
Metro Atlanta's African-American bar associations have expressed dismay to President Barack Obama that a list of proposed candidates to fill six federal judgeships here includes just a single African-American.

 In letters to the president, the groups have asked Obama to resurrect his nomination of U.S. Magistrate Judge Linda Walker, an African-American who had the support of Georgia's two Republican U.S. senators before her 2011 nomination to serve on Atlanta's district court was withdrawn by the White House when it expired in December 2012.

Replacing one of three white proposed candidates with Walker would fulfill the groups' wish that at least two African-American women who live and practice law in the Northern District of Georgia be appointed to its bench.
The letters also criticized how the list was formed, saying Democrats and Republicans failed to consult black bar leaders for the first time in decades.

The list of six proposed candidates was forwarded to the White House after Georgia's U.S. senators and Atlanta lawyer Kenneth Canfield, who raised money for Obama's campaign, agreed to the deal, according to members of the Atlanta legal community familiar with it.

The deal includes proposed nominees for the U.S. Court of Appeals for the Eleventh Circuit: Jill Pryor, a partner at Atlanta's Bondurant, Mixson & Elmore whom President Obama has twice nominated to the appellate court; and U.S. District Court Chief Judge Julie Carnes of the Northern District of Georgia, who was appointed by President George H.W. Bush in 1992.
Senators Saxby Chambliss and Johnny Isakson so far have blocked Pryor's nomination, but as part of the deal reportedly agreed to waive their objections in return for Carnes' appointment and three nominees of their choosing for the Northern District of Georgia bench.

Carnes' confirmation would create a fourth vacancy on the district court bench in Atlanta, where three judges who took senior status in 2009, 2010 and this year have yet to be replaced.
The single Democratic candidate for nomination to the Northern District bench is Leigh Martin May, a personal injury and product liability attorney at Butler Wooten & Fryhofer who is active in Democratic Party politics.

The senators' picks for the Northern District are:
Troutman Sanders partner Mark Cohen, whose name the senators put forth first in 2010 for the Northern District bench and then in 2011 for the Eleventh Circuit;
• DeKalb County State Court Judge Eleanor Ross, a former prosecutor appointed to the bench by Republican Governor Nathan Deal in 2011; she is the only African-American on the list; and
• Judge Michael Boggs of the Georgia Court of Appeals, a former Superior Court judge from the Waycross Judicial Circuit in the Southern District of Georgia.

In the wake of the Sept. 10 Daily Report story revealing the list, Georgia's five Democratic congressmen—John Lewis, Hank Johnson, David Scott, Sanford Bishop and John Barrow—expressed shock and disappointment and sought a meeting with the White House counsel. Spokesmen for Scott and Hank Johnson told the Daily Report that there has been no response from the White House.
"What is very, very disappointing is that we have had almost no input into this process," said Atlanta attorney Antonio Thomas, a former president of the Gate City Bar Association who advised former U.S. Senators Herman Talmadge and Sam Nunn on judicial nominations during the administration of President Jimmy Carter. Thomas was also part of a delegation of former Gate City presidents who met with White House staff in 2010 to urge more African-Americans judicial picks.

"I think we need a public outcry, a major one," he continued. "I don't know whether the president knows. I don't know whether he understands how detrimental these appointments are or will be to this bench, to the minority citizens, black citizens of this state."
Leah Ward Sears—a former Chief Justice of the Supreme Court of Georgia, co-founder of the Georgia Association of Black Women Attorneys and a partner with Schiff Hardin —said the proposed slate "is not a representative list" given that African-Americans make up about 30 percent of the state's population and many of them live in the Northern District.

"There is a big concern about the White House not getting input from Democratic elected officials," she said, as well as a growing sense that "the White House isn't willing to fight hard enough to get its picks in." Democrats, she said, "have paid a heavy, heavy price" in order to clear the way for Pryor's confirmation, "and everyone is upset. … People of color lose confidence in our judicial system when they are not adequately represented in the number of judges. Period."
In its letter to Obama, the Gate City Bar pointed out that there has never been an African-American woman on the district bench in Georgia, adding that the vacancies present"the best opportunity to remedy this disparity." Gate City also threw its support behind Ross and backed Walker and offered to recommend "several stellar candidates for consideration."

Chambliss and Isakson first suggested Walker, a federal magistrate judge for more than 20 years, as a potential candidate after a committee appointed by the state's congressional Democrats didn't include her on a list of candidates forwarded to Obama in 2009.
The president subsequently nominated Walker and V. Natasha Perdew Silas, a federal public defender in Atlanta and an African-American whose name was among those the Democrats' committee recommended.

U.S. Senate Judiciary Committee staff told the Daily Report that the two women were nominated as a package, but Georgia's senators opposed Silas and refused to allow her confirmation hearing to proceed. The White House subsequently abandoned both nominations when they expired in 2012.
Another group of African-American lawyers, the DeKalb Lawyers Association, expressed similar sentiments in a letter to Obama signed by the organization's president-elect, Mawuli Mel Davis. The letter singled out Walker for reconsideration, describing her as an "exemplary African-American female jurist" and suggested that if Walker were no longer an option, the group had several names, each "a stellar African-American female attorney who lives and practices in the Northern District," that it was willing to put forward for consideration. The letter made no mention of Ross or Silas. (The association's current president is Brian Ross, Eleanor Ross's husband. Davis said Brian Ross has excused himself from any involvement in the issue.)

Davis said the association decided to contact the president because, "We just felt that this reported compromise was not representative of the diversity of the Northern District or the state for that matter."
Davis said the group's support of Walker "was not a slight at all to Natasha Silas. ... Ideally, she should be on the federal bench as well. … Unfortunately, we have to deal with the political landscape."

The Gate City and DeKalb Lawyers letters mirror a Sept. 6 letter to the president from the Georgia Association of Black Women Attorneys and a similar letter, dated Aug. 26, from Advocacy for Action, a joint task force of Gate City and GABWA. They also asked the president to appoint at least two African-American women to the Northern District bench and to reconsider Walker for a seat. Unlike Gate City, neither the task force nor GABWA mentioned any support for Ross.
Holland & Knight partner Charles Johnson—an ex-Gate City president and a co-convener of Advocacy for Action—said that many in the African-American community backed the compromise that led to the Walker and Silas nominations. So it was surprising, he said, that Walker wasn't on the new list, because "Linda is at least known in the community."

"The subject of Eleanor Ross and the handling of that subject in that letter was a product of considerable deliberation," Johnson said of the task force's letter. He said there was a division of opinion in the African-American legal community about whether to back Ross.
The concern, ultimately reflected in the letter, was what Johnson suggested was an exclusive selection process that led to the current proposal, as opposed to "one in which candidates would emerge from some vetting among community leadership."

"I think that if that had been the process … hers [Ross's] is not the first name that would have emerged. ... There are folks who are known in the community and who have a presence in the community to a much more considerable extent than she does," he said.
Johnson also said that any suggestion that too few qualified attorneys of color had applied for the open judicial seats was "a sad commentary on our society."

"If there are 2,500 African-American lawyers in this state, and people who are in this process can't find anybody qualified and willing, the reflection is on them, not us," Johnson said. "If we had conversations with the senators and they ask that question, we would have an answer. ... We would be able to give them the help they need in identifying folks who are qualified and ready to take it."
Thomas said that Atlanta's black bar associations during Obama's first term didn't push African-American candidates for the federal bench. "We need to take leadership," he said. "There are so many splits," he added. "People don't want to go and make their opinions known." Some lawyers, he said, feared what might happen if they backed a candidate who was not selected and then had to appear before a judge they had not publicly endorsed. "Judges can make it difficult for you," he said.

He also said that black lawyers and members of the black community at large have not wanted to be critical of Obama. "We're beyond that now," he said. "He has allowed people who did not support him, who do not have his philosophy" to control the nomination process, Thomas said. "Why has he … capitulated to the Republicans? I don't understand it. … We understand the political realities. But what is he getting in return from Georgia's senators? … We don't understand the politics of it."
Thomas also has been vocal about the need to do what he said Georgia's senators are doing—vetting candidates not only for their qualifications but also for the kind of judicial philosophy they espouse. In an Aug. 17 letter to Advocacy for Action co-convener Suzanne Ockleberry, Thomas wrote: "If we do not address the judicial appoint[ment]s from the position of race and judicial philosophy, we lose. Because the Senator will easily accept a black American with a Clarence Thomas philosophy. Should that happen, I would rather take my chances before the bench as presently constituted."

Thomas previously questioned whether Walker's judicial philosophy was more like that of Republican appointees than a Democratic president.
Sears, by contrast, suggested that regardless of party, people vetting potential nominees "ought to go with very competent candidates and stop looking at [judicial] philosophy." The goal, she said, should be to seek out "good, fair, unbiased judges. That's the right thing to do on the right and on the left. … We ought to go with the best people who will do an excellent job, which means being fair and unbiased and calling the shots as they see them without consideration of who's a Republican and who's a Democrat."

Saturday, September 28, 2013

A Call to Action on Judicial Diversity

Advocacy for Action (“AFA”) is a not-for-profit social welfare organization established by a joint task force under the auspices of two of Georgia’s leading legal societies – the Gate City Bar Association and the Georgia Association and the Georgia Association of Black Women Attorneys – to educate the public on the importance of assuring that our judiciary continues to be accountable and representative. 

The members of our respective associations have had a longstanding interest in assuring accountability at all levels of government, but particularly the judiciary.  We believe that, to be accountable, the bench must be populated with highly qualified individuals who are representative of the communities that they serve.  Judicial diversity promotes impartiality by ensuring that no one viewpoint, perspective, or set of values can persistently dominate legal decision making.  As Judge Richard Posner has observed, 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.[1]  Judge James Wynne has noted that a lack of diversity poses a significant challenge for a judicial system that passes judgment on issues affecting African-Americans, women and other minorities.[2] 

The goal of a representative judiciary is far from being realized in the courts which most directly affect the people of Georgia. To the contrary, the State’s historic progress in the direction of a representative judiciary has stalled and, in some cases, it has been reversed.

Federal Judicial Appointments

The State’s federal courts provide an instructive example.  While African-Americans comprise over 31% of the State’s population, they comprise only 19% of the State’s active federal judges.  The U.S. District Court for the Northern District of Georgia presents the best opportunity to remedy this disparity, as it has the largest number of judicial positions, the largest number of judicial vacancies and, by far, the largest number of African-American lawyers.  Out of the thirty-five (35) judges who have been appointed in the Northern District of Georgia since the court’s inception in 1948, only three have been African-American.  At any given time, the Court has had only one full-time African-American Judge. Each judge was appointed only after the retirement of the retirement of another active African-American Judge.  Judge Horace Ward, 1979 Carter appointee, assumed senior status in 1993 and was succeeded in 1994 by Judge Clarence Cooper.  After Judge Cooper took senior status, he was succeeded by Judge  Steve C. Jones, who was recently appointed by President Obama.  There has never been an African-American female appointed to this court or other federal court in Georgia.

Georgia’s organized African-American bar is uniquely positioned to assist in identifying outstanding judicial candidates of diverse backgrounds. Bar leaders have long pointed to the numerous and long-standing vacancies on the U.S. District Court for the Northern District of Georgia  as an opportunity to remedy the court’s lack of diversity.  Sadly, however, the process of filling the current vacancies on the Northern District of Georgia has involved little in the way of consultation with the organized African-American bar. For example, when the White House recently asked a group to come to Washington to address the logjam in federal judicial appointments, not one African-American attorney from Georgia was asked to participate in the meeting.  It appears that those most involved in the process have had little exposure to many of the great lawyers who are known to the organized African-American bar.

Such a flawed process has the potential to produce a highly unfortunate outcome.  In this connection, the recent agreement which the President has reportedly been asked to approve is viewed as highly disturbing.  The President’s previous nominates of two African-American females having been returned to him, this reported agreement would involve the addition of four new district judges, one of whom is known for his advocacy against voting rights and in favor of voter suppression and only one of whom is an African-American female.  The resulting African-American percentage of Georgia’s federal bench would be 20%, still far below a level that would be in any way representative.

While Georgia’s senators may have previously blocked African-American female nominees to the bench, the Administration should not capitulate to a compromise that decreases the number of African-American female nominees to one.  Rather, the Administration should nominate and support two exemplary African-American female candidates who live and practice in the Northern District of Georgia and who are sensitive to the community’s concerns regarding important issues such as discrimination, voting rights, and the sentencing of criminal defendants.

State Judicial Appointments

The need for judicial diversity is equally keen in the Georgia’s state-level trial courts.  While the Georgia Constitution provides for an elected judiciary, it also empowers the Governor to fill mid-term vacancies and, consequently, the overwhelming majority of judges in the State - including in the Fulton County Superior Court - reach the bench through gubernatorial appointment.

In 1988, six (6) of the 137 Superior Court judges in the State’s 45 judicial circuits were African-American.  That was the same year that State Representative Tyrone Brooks instituted litigation under Sections 2 and 5 of the Voting Rights Act, challenging the at-large method of electing superior court judges, as well as the failure of the State to obtain pre-clearance under Section 5 for newly created judgeships.[3]  The settlement in the Brooks litigation, although not approved by the General Assembly would have mandated the appointment of a minimum number of African-American judges, required the State to maintain a racially diverse judiciary, and established continuing federal jurisdiction over enforcement of the terms of the settlement.  Governor Miller decided to honor the spirit of the Brooks settlement and appointed several outstanding African-American judges to the Courts of the State.  For the first time in history, the judiciary began to reflect the diversity of State.  By 2002, eight (8) of the 18 judges on the Superior Court of Fulton County, or 44%, were African-American.

This has all changed, as is illustrated with the changes on the Superior Court of Fulton County, which is the State’s largest and most powerful state-level trial court. Because the State Capitol is in Fulton County, constitutional challenges and appeals from State agency decisions are heard in this court.  In addition, emergency hearings and/or stays of executions in death penalty matters are decided in this court. 

Over the past decade, however, the Fulton County Superior Court has experienced a steady erosion in racial diversity.  In the last decade, not one African-American attorney has been appointed to the Fulton County Superior Court bench.  Instead, every vacancy which has occurred as a result of resignation or retirement has been filled with a white appointee.  The last African-American female judge was appointed to the Fulton County Superior Court bench in 1996, and the last African-American male judge was appointed in 2002. 

According to the 2010 Census, Fulton County’s population is 44% African-American.  As of 2012, however, only 6 out of 20 judges on the Superior Court were African American, or 30% (down from 44% in 2002).

The recent erosion in judicial diversity is certainly not due to a lack of qualified African-American candidates.  Fulton County is home to most of the State’s several hundred African-American lawyers. Over the years, these lawyers have included the first African American woman to be admitted to practice before the U.S. Supreme Court, as well as the lawyers who led the battles to desegregate the State’s universities, public schools and places of public accommodation.  More recently, the county’s African-American lawyers have included several trial and appellate judges, three of Atlanta’s mayors, two Presidents of the Atlanta Bar Association, partners in every major Atlanta law firm, and the Chief Legal Officers of major institutions such as United Parcel Service, Pepsico, Inc., and The Home Depot, as well of legions of other talented lawyers who play key roles in the efficient administration of justice.

A Call to Action

We are rapidly reaching a point at which the notion of a judiciary comprised of the best and brightest legal minds regardless of race will be no more than a bygone memory.  We urge the State to avoid this consequence by establishing a judicial selection process which achieves accountability through diversity, by placing more African-Americans on the Judicial Nominating Commission, and by appointing qualified African-American candidates to the Superior Courts and other courts of this State.  Meanwhile, judges themselves can play a role by serving out their terms and allowing the voters a greater role in judicial selection.  The justice system belongs to the people, after all, and they should be encouraged to take on a more significant role in selecting those who administer justice on their behalf.

Georgia also should consider some of the more recent steps which other states have taken to pursue judicial diversity.  For example, Arizona has a constitutional provision requiring its judicial nominating commission to “consider the diversity of the state’s population; however, the primary consideration shall be merit.”[4]  Maryland has an executive order which requires that its nominating commission “shall consider . . . the importance of having a diverse judiciary.”[5]  In Missouri, the governing Supreme Court rules direct that “the Commission shall further take into consideration the desirability of the bench reflecting the racial and gender composition of the community.[6]

Several other states have laws that mandate diversity in the composition of their judicial nominating commissions.  Florida, for example, requires that “the Governor shall seek to ensure that, to the extent possible, the membership of the Commission reflects the racial, ethnic, and gender diversity, as well as the geographic distribution of the population within the territorial jurisdiction of the Court for which nominations will be considered.”[7] Tennessee law requires the appointment of “persons who approximate the population of the state with respect to race, including the dominant ethnic minority population, and gender.”[8]  Rhode Island provides that “[t]he Governor and the nominating authorities hereunder shall exercise reasonable efforts to encourage racial, ethnic, and gender diversity within the Commission.[9]

Many explanations have been offered for the current erosion in the diversity of the appointment of judges to the courts affecting this State.  Whatever the cause, it can only be remedied by deliberate action on the part of the appointing officials and the voters.  While the appointing authorities have bemoaned the difficulties that they have encountered in achieving judicial diversity, their lack of success may in some degree result from the ad-hoc manner in which they have pursued this goal.  However, it may well be that results may be more effectively pursued through actually codifying the pursuit of judicial diversity in the appointment process in the manner that other States have done.

But these prescriptions will only be effective if the appointing authorities truly subscribe to the goal of judicial diversity and accountability and competently pursue that goal.  If the appointing authorizes are lacking in the necessary commitment, or in the necessary competence, then we can take comfort in the fact that judicial selection is not the exclusive domain of elected and appointed officials: Rather at least at the State level, the voters have a meaningful role to play, and they should be encouraged to take that role seriously.
[1] Richard A Posner, Law, Pragmatism and Democracy 71 (2003).
[2] James A. Wynne and Eli P. Mazur, Judicial Diversity: Where Independence and Accountability Meet. 67 Albany Law Review 755 (2004).
[3] Brooks v. State Board of Elections, 775 F. Supp. 1470, S.D. Ga. 1989) aff’d sub nom. Brooks v. Georgia State Board of Elections, 498 U.S. 916, 111 S.Ct. 288, 112 L.Ed. 2d 243 (1990) and aff’d sub nom. Georgia State Board of Election s v. Brooks, 498 U.S. 916, 111 S.Ct. 288, 112 L.Ed. 2d 243 (1990).
[4] Ariz. Const., Art. VI, § 36.
[5] Md. Exec. Order No. 01.01.2007.O8.
[6] Mo. S.Ct. R. 10.32(f)(2008).
[7] Fla. Stat. Ann. § 43.291(4) (2008).
[8] Tenn. Code. Ann. § 17-4-102(c) (2008).
[9] R.I. Gen. Laws § 8-16.1-2(a)(3) (2006).