Black Bars Cry Foul Over List Of Judges

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

 

By R. Robin McDonald 

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support of Georgia's two Republican U.S. senators before her 2011 nomination to serve on Atlanta's district court was withdrawn by the White House when it expired in December 2012.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."

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).

Georgia Lawyers Call for a More Accountable Judiciary

Americans have seen too many cases like those of Rodney King, Abner Louima, Oscar Grant, and Trayvon Martin and other young, whose attackers have escaped convictions or escaped just sentences for their crimes because those who have administered justice have not been accountable to the communities they serve.  How many times will we be asked to remember, march, say to ourselves “what a shame” and then do nothing else?  We have a chance to do something that can change what justice looks like for our community.  

On November 2, 2013, several African American bar associations, including Advocacy for Action, the Gate City Bar Association, the Georgia Association of Black Women Attorneys (GABWA), the Dekalb Lawyers Association (DLA), the New Rock Legal Society, the Augusta Conference of African American Attorneys (ACAA), and the Howard Law School Alumni, are coming together to sponsor a symposium about the need for Diversity on the Bench, at Big Bethel Church. We will discuss the issue of the lack of diversity on the bench, the impact on the community and how our vote and voice in the upcoming elections in 2014 can help to ensure that Georgia does not experience the sort of injustice that took place in the cases of King, Louima, Grant, and Martin. 

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. 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.

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.  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.  There has never been an African-American female appointed to this court or other federal court in Georgia.

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.  As a result of litigation by Representative Tyrone Brooks, Governor Miller decided to appoint 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.    Governor Barnes who succeeded Governor Miller also made diverse judicial appointments to the judiciary and by 2002, eight (8) of the 18 judges on the Superior Court of Fulton County, or 44%, were African-American.

This has all changed. Over the past decade, 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. 

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.

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 due to an appointment process which favors one ethnic group to the exclusion of all others.  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.  At the State level, the voters have a meaningful role to play, and they should be encouraged to take that role seriously.

That is why the attorneys, judges and the public are invited to hear from panelists such as National Action Network President Reverend Al Sharpton, Senior Pastor of Historic Ebenezer Baptist Church Reverend Dr. Raphael Warnock, State Representative Tyrone Brooks (D), U.S. Representative Hank Johnson (D)  State Representative, House Minority Leader Stacey Abrams (D), Retired Fulton County Judge Thelma Wyatt Cummings, Civil and Human Rights Activist Reverend Markel Hutchins, Radio Talk Show Host and Activist Derrick Boazman, Noted Attorney Mawuli Davis and others.  Together we can become advocates by using our vote to elect a diverse state judiciary and our voice can speak out about the lack of diverse appointees to the federal court.  We need to do so before we end up marching for justice for another young man such as Rodney King, Oscar Grant or Trayvon Martin.  We must not let our votes or our voices go unheard.  We must become Advocates for Action for a diverse and representative judiciary in Georgia. Join the Conversation On Justice.  

A Plea for Inclusiveness in Federal Judicial Selection

August 27, 2013


President Barack Obama
The White House
1600 Pennsylvania Ave. NW
Washington, DC 20500

Re: United States District Court for the Northern District of Georgia

Dear President Obama:

Advocacy for Action ("AFA") is 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 of Black Women Attorneys – to educate the public on the importance of assuring that our judiciary continues to be accountable and representative. Our associations and their members have a keen interest in the quality of justice as it is administered in our federal courts. We believe that, to be accountable, the bench must be populated with highly qualified individuals who are representative of the communities that they serve. The degree to which this goal is achieved is one of the most important standards by which the legacy of any President should be measured.

By this standard, Georgia’s federal courts have much room for improvement. While African-Americans comprise over 31% of the State’s population, they comprise only 19% of the State’s active federal judges. Moreover, there has never been a Black female judge on any federal bench in this State. 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. 

The organized black bar is uniquely positioned to assist you in identifying outstanding judicial candidates of diverse backgrounds. Sadly, however, the process of filling the current vacancies on the U. S. District Court for the Northern District of Georgia has involved little in the way of consultation with the organized black bar. We can only assume, based on the results to date, that those most involved in the appointment process have little exposure to many of the great lawyers who are known to us.

Such a flawed process has the potential to produce a highly unfortunate outcome. In this connection, we are highly disturbed about the agreement which you have reportedly been asked to approve for the Northern District. Your previous nominations of two black females having been returned to you, 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 a Black female. The resulting Black percentage of Georgia’s federal bench would be 20%, still far below a level that is in any way representative.

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

One such exemplary African American female jurist is the Honorable Linda Thompson Walker, who currently serves as a Magistrate for the Northern District of Georgia. Judge Walker previously had the full support of the Georgia Senators, and we see no reason why that support should have waned. If for some reason Judge Walker is no longer an option for a consideration, there are several stellar candidates that we are prepared to recommend to you and the White House Counsel. 

In the interest of leaving a judicial legacy of which you and our community can be proud, we implore this Administration to ensure that two additional African American females are nominated and appointed to the federal bench in the Northern District of Georgia, and we welcome the opportunity to meet with White House Counsel or other members of your staff to discuss the matter further. 

Very Truly Yours,


Advocacy for Action

By:


Charles S. Johnson
Co-Convenor

Suzanne W. Ockleberry
Co-Convenor     

Deal On Judges Draws Ire Of Georgia Democrats

Congressmen send letter to White House expressing 'shock' over deal.

By R. Robin McDonald

Daily Report, September 19, 2013

Georgia's Congressional Democrats have sent a letter to President Barack Obama's White House counsel expressing shock and disappointment over a proposed deal awaiting White House approval that allowed the state's Republican senators to select four candidates for six federal judicial posts in Georgia.

 

The letter, sent Tuesday night to White House counsel Kathryn Ruemmler, complained that the Democratic congressional delegation's efforts to recommend candidates and keep abreast of the process to fill the state's open federal judicial seats had been stonewalled by her office.

 

Signed by Congressmen John Lewis, Hank Johnson, David Scott, Sanford Bishop Jr. and John Barrow, the letter seeks a meeting with Ruemmler within the next two weeks "to discuss a path forward for creating a federal judiciary through nominating and confirming the most qualified candidates" that would "take into account a diversity of views in this important selection process."

 

The letter refers to the Daily Report's Sept. 10 story that identified six potential nominees for the federal judiciary whose names have been sent to the White House. The proposed list of nominees were submitted as part of a deal approved by Georgia's Republican U.S. senators and Democratic lawyers in Georgia whose liaison with the White House has been Obama bundler Ken Canfield of Atlanta's Doffermyre Shields Canfield & Knowles.

A call to Ruemmler and associate counsel Christopher Kang, who has been the point man on the Georgia nominations, was routed to the White House Office of Media Affairs, which did not respond to the Daily Report's questions.

 

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 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' 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 single proposed Democratic nominee for U.S. District Court for the Northern District of Georgia is Leigh Martin May, a personal injury and product liability attorney at Butler Wooten & Fryhofer who is active in Democratic Party politics. May was on a 2009 list of recommended nominees compiled by a committee appointed by the Democratic congressmen who signed the letter.

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 who was appointed to the bench by Gov. Nathan Deal in 2011 and who is 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.

In their letter to Ruemmler, Georgia's Democratic congressmen said they learned of the potential deal from the Daily Report. "We were disappointed, shocked, and chagrined when we recently read reports of the White House decision to cut a deal on these judgeships with the Republican senators," the letter states.

 

Since the Democratic congressional delegation forwarded a slate of candidates to the White House counsel in 2009, the congressmen said they have contacted the office seeking meetings on the federal judicial vacancies "on several occasions."

 

"To date, we have neither received any correspondence in response to those requests nor have we received any information with respect to your process," the letter said. "We feel strongly that better opportunities should have been available to value our experience, input, and insight in the judge selections for Georgia."

 

Only one of the candidates on the delegation's original list to fill vacancies on the Northern District bench - Amy Totenberg - was nominated by the White House and confirmed by the U.S. Senate. Steve Jones, a former Superior Court judge in Athens, was on a list of potential nominees compiled by the committee for a federal judgeship in the Middle District. After that post went to a Macon lawyer, the president nominated Jones to the Northern District bench. Jones and Totenberg were both confirmed by the U.S. Senate in 2011.

 

In seeking a meeting with the White House counsel, the congressmen said they wanted "to ensure that we have an opportunity to work with the Administration and Georgia's senators to ensure that the best candidates are nominated."

 

Their letter noted that although they have submitted several candidates for nomination to the federal bench in Georgia during the last two sessions of Congress, "Our Senate colleagues put none of these names forward."

 

One of those candidates was V. Natasha Perdew Silas, a federal public defender in Atlanta. The president nominated Silas and U.S. Magistrate Judge Linda Walker - both African-American women - to the federal bench in 2011. Silas' name was among those the congressional committee had recommended in 2009.

 

Walker was recommended by a six-man committee of lawyers who have been advising Chambliss and Isakson on federal judicial appointments. U.S. Senate Judiciary Committee staff told the Daily Report that the two women were nominated as part of a package deal, but Georgia's senators opposed Silas and refused to return their blue slips to the committee, which would have allowed her confirmation hearings to proceed. The White House subsequently withdrew both nominations.

 

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."

 

"Although the Constitution tasks the Senate with providing 'advice and consent' on judicial nominees, we further believe that Georgia's Democratic congressmen will meaningfully contribute to this process by including both chambers to ensure that Georgia gets the very best talent available," the letter said.

 

Judge Demands the Governor Not Create All-White Bench

Retiring Judge John Allen asks the governor to consider the "face of justice" as he makes appointments

By R. Robin McDonald

 

Daily Report, September 11, 2013

 

 

The sole African-American judge on the Chattahoochee Circuit's Superior Court for the past 21 years has asked Governor Nathan Deal to consider color—the "face of justice"—in filling two seats on the seven-member bench. Judge John Allen, who will retire as the court's chief judge on Oct. 31, wrote in a memo sent to the governor and his Judicial Nominating Commission that an all-white and male judiciary in the Columbus area circuit would be "egregiously unrepresentative of the population served."

In addition to Allen's seat, the governor will appoint someone to a new seat created by the Legislature. The JNC is accepting applications through Sept. 16. Of six nominations the JNC had received as of Sept. 5, at least one was African American—Alonzo Whitaker, chief assistant district attorney in the Chattahoochee Circuit.

Allen, 70, who stepped down earlier this year as chair of the Judicial Qualifications Commission, wrote in the Sept. 5 memo that if the governor follows the pattern of two recent appointments in his six-county circuit, it would create "an all-white male superior court bench". That "would be egregiously unrepresentative of the population served," Allen wrote.

The memo chided the governor for his past appointments, saying, "I am certain you are aware of the 'face of justice' created by your appointments to the bench."

In 2011, Deal appointed a white man, Art Smith, to the Chattahoochee Circuit to replace Douglas Pullen, who stepped down to end an ethics investigation by the JQC. In 2010, Governor Sonny Perdue appointed William Rumer, a white Columbus lawyer, to replace Robert Johnston after Johnston stepped down to end a JQC investigation.

Allen's concerns mirror those of a coalition of leaders from metro Atlanta's African-American legal community who last year publicly challenged what they said was a decade-long failure by the state's political leadership to appoint African-Americans to judgeships. The result, they said, has been a decline in the number of African-Americans holding state judicial posts.

A spokesman for Deal told the Daily Report last year that the governor "takes into consideration the importance of diversity" in political appointments, while noting that the governor's "first priority is selecting first-rate jurists."

A Deal spokeswoman said Tuesday: "The governor interviews a short list of thoroughly vetted individuals provided by the JNC. The commission members are distinguished members of the legal profession from throughout the state, and they recommend the candidates they deem most qualified to serve the people in their jurisdiction. Diversity is one of many important considerations in these decisions. Gov. Deal has not and does not discriminate during his decision process. He chooses the best person for the job regardless of their gender or race."

JNC co-chair Randy Evans said, "Diversity plays a role in the decision-making process. We work very hard in that regard. The tough part is that ... in many situations we don't have any minority applicants, any Asian-American applicants, any African-American applicants. It's hard to pick one when nobody applied or the ones who applied didn't meet the statutory requirements for the position. We are very mindful of it. We are sensitive to it. We are diligent about it. But at the end of the day, all of it depends on the applicant pool.".

Allen included in his memo data from the 2010 Census showing that in Muscogee County, the circuit's largest county and home of Columbus, the population is divided nearly evenly between African-Americans and whites. In the six counties that comprise the circuit, there are 134,156 whites compared to 104,546 African Americans, according to Allen's memo.

"Unquestionably, judges are influenced in their notions of justice by their unique life experiences," Allen wrote. "It would be a travesty to the population served if their justice is reflected only in terms of the 'white male' experience."

Allen, who was appointed to the Superior Court by Governor Zell Miller in 1993, told the Daily Report he has not received any response from Deal or the JNC. "I wrote the letter so that they might have the benefit of the viewpoint of a sitting judge here," he said. "I intended it solely as ... a viewpoint of this judge. But I think it's a viewpoint that expresses very accurately what the situation is when it comes to the judiciary in this circuit."

Allen said he decided that diversity "needed to be in the forefront and minds of the persons who choose who will sit as judges. ... I don't want the governor or his committee to sit there and not have as a part of their thought process that this judiciary ought to be representative of the body it serves. And based on all of the appointments they have made in recent years, obviously they have not considered that. Nobody has put it in their faces."

"It's almost an indictment of females and African-Americans not to be chosen, because they are saying you are not qualified," Allen continued. "And it's just not true."

"To have these concerns presented to them doesn't mean you select a person simply because they are a minority of any sort," he said. "I'm not arguing any quota. I'm just arguing that the full spectrum is not represented in this district."

If the Chattahoochee Circuit has a bench of only white males, "The people who are being judged don't look like the bench. If they did, it would increase their belief in the fairness of the system. There is no such thing as white and black justice, but there are perspectives you bring to the bench. There are definitely differences, and that's what judges express."

This article originally appeared in the print edition under the headline “Judge demands the governor not create all white bench.”

rmcdonald@alm.com

A Deal on the Table for Federal Judge Appointments?

Georgia lawyers say Chambliss, Isakson and state Democrats wait for OK from Obama

By R. Robin McDonald

Daily Report, September 10, 2013

Georgia's Republican U.S. senators have cut a deal with state Democrats that, if approved by the White House, would fill six judgeships on Atlanta's federal appeals and district court benches, Georgia lawyers familiar with the nomination process have told the Daily Report.

The package deal would remove roadblocks thrown up by Senators Saxby Chambliss and Johnny Isakson that have held up the confirmation of Atlanta attorney Jill Pryor, a partner at Bondurant Mixson & Elmore, for the Eleventh U.S. Circuit Court of Appeals. Pryor was nominated in February 2012.

The deal also recommends the elevation to the Eleventh Circuit of U.S. District Court Chief Judge Julie Carnes of the Northern District of Georgia. Carnes was appointed to her current post by President George H.W. Bush in 1992.

Carnes' move would create a fourth vacancy on the district court in Atlanta, where judges who left in 2009, 2010 and this year have yet to be replaced.

The new bargain includes the nomination of Leigh Martin May, a personal injury and product liability attorney at Butler Wooten & Fryhofer, for the Northern District bench. May was on a 2009 list of potential nominees that was sent to the White House by a committee appointed by members of Georgia's Democratic congressional delegation; May's law partner, James Butler, was a member of that committee. Chambliss and Isakson initially rejected May and others as nominees.

In return for their agreement not to block the nominations of Pryor and May, Chambliss and Isakson would name candidates to the other three district court vacancies. They include Troutman Sanders partner Mark Cohen, whose name the senators put forth first in 2010 for the Northern District bench and in 2011 for the Eleventh Circuit. Their remaining two picks are two state court judges appointed by Republican Governor Nathan Deal—DeKalb County State Court Judge Eleanor Ross and Judge Michael Boggs of the Georgia Court of Appeals.

Ross, a former Fulton County assistant district attorney and the only African-American among the prospective nominees, was appointed to the DeKalb state court bench by Deal in April 2011. Deal named Boggs—then a Waycross Circuit Superior Court judge—to the Georgia Court of Appeals in January 2012. Waycross, as well as Boggs' home in Pierce County, are in the Southern District of Georgia. If Boggs is nominated, it would be the second time the White House reached outside of the Northern District for a federal judicial candidate. At the suggestion of Georgia's senators, President Obama appointed then-Superior Court Judge Steve C. Jones of Athens, in the state's Middle District, to the Northern District bench in 2011.

Pryor, May, Cohen and Ross declined to comment for this story. Carnes and Boggs could not be reached.

A spokeswoman for Chambliss declined to comment. Isakson's staff could not be reached.

Ken Canfield, a partner at Doffermyre Shields Canfield & Knowles who last year became the liaison between state Democrats and the White House regarding Georgia's federal judicial nominees, said he could neither confirm nor deny that a deal had been reached. In July, he told a gathering at a program on the federal judiciary that after months of stalemate, discussions were taking place between Georgia's two senators and the White House to find acceptable nominees.

   

The bargain now on the table does not sit well with members of the Gate City Bar Association and the Georgia Association of Black Women Attorneys.

In an Aug. 27 letter to the president concerning nominees to the Northern District, members of Advocacy for Action—a joint project of Gate City and GABWA to promote an "accountable and representative" judiciary—said they were "highly disturbed" about the deal because it includes only a single African-American woman and a candidate "known for his advocacy against voting rights and in favor of voter suppression."

Although the letter does not mention Cohen by name, for three years, he served as a special assistant attorney general defending Georgia's voter ID law. The White House had vetted Cohen as a possible candidate for the Eleventh Circuit in 2011, people familiar with the nomination process told the Daily Report. The White House tentatively decided to tap him instead for the district court shortly after Attorney General Eric Holder in December 2012 cited new voter ID laws similar to Georgia's as examples of attacks on voting rights.

Cohen's opposing counsel in the voter ID litigation included Emmet J. Bondurant, the senior partner at Pryor's law firm.

The Advocacy for Action letter urged the White House "not to capitulate to a compromise that decreases the number of African-American females to one" on the current list of proposed nominees to the federal bench in Georgia. The group also threw its support to U.S. Magistrate Judge Linda Walker as a candidate for a district court seat, presumably to replace either Boggs or Cohen on the new nominee list. The group offered to supply names of African-American candidates "who live and practice in the Northern District and who are sensitive to our community's concerns regarding important issues such as discrimination, voting rights, and the sentencing of criminal defendants."

The group's support of Walker was interesting. Selected as a federal magistrate judge in 2000 by the judges of the Northern District, she remains the only African-American woman to serve as a federal judge in Georgia. But she has been a favorite of the Republicans. Chambliss and Isakson suggested her as a district court nominee after the Democrats' selection committee rejected her in 2009, in part because of her conservative judicial philosophy.

The White House nominated Walker to the Northern District in 2011, and Isakson and Chambliss returned blue slips to the U.S. Senate Judiciary Committee, signaling their approval.

But Chambliss and Isakson refused to return blue slips for Natasha Perdew Silas, a federal public defender in Atlanta who had the support of the Gate City Bar and was nominated with Walker as an apparent package deal. In December 2012, with the Walker and Silas nominations at an impasse, the White House withdrew the nominations of both women.

The Gate City-GABWA task force letter to the White House also lamented the process for filling the vacancies on the district and appellate benches, saying that it "involved little in the way of consultation with the organized black bar" and that those involved in the process "have little exposure to many of the great lawyers who are known to us."

The letter also suggested that "such a flawed process has the potential to produce a highly unfortunate outcome."

The letter was signed by Suzanne Ockleberry, an attorney with AT&T and past president of GABWA; and Charles Johnson, an attorney at Holland & Knight in Atlanta and a former president of the Gate City Bar. Ockleberry referred questions to Johnson. "Our letter talks about process, lack of involvement," Johnson said. "Beyond that, there is a distinct lack of transparency."

 

Last Friday, GABWA sent a separate letter to the White House that also urged the appointment of two African-American women to Georgia's federal bench.

 

That letter, signed by GABWA President Jacqueline Bunn, executive director of the Georgia Criminal Justice Coordinating Council, urged the White House to nominate at least two African-American women "who have practiced in the Northern District and who are part of the community" and asked for a meeting with the White House counsel to discuss the matter. Bunn could not be reached for comment.

 

 

The letter pointed out that there has never been an African-American woman appointed to a district court judgeship in Georgia or the Eleventh Circuit. It noted that there has never been more than one African-American man serving as an active judge on the Northern District bench at any time in the district's history. Currently, Judge Steve Jones is the only active African-American judge on the Northern District bench. Judge Clarence Cooper took senior status in 2009, and his former seat is one of those that remains vacant.

 

 

"[I]t is time for meaningful diversity on the federal bench in Georgia," the letter continued. "Achieving diversity is particularly important for the federal judiciary given the constitutional issues handled as a matter of routine."

 

This article originally appeared in the print edition under the headline “Georgia lawyers say Chambliss, Isakson and state Democrats wait for OK from Obama.”