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support of Georgia's two Republican U.S. senators before her 2011 nomination to serve on Atlanta's district court was withdrawn by the White House when it expired in December 2012.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