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.”