Georgia Congressmen Oppose Federal Judge Nominees

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

By Alyson M. Palmer

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.

 

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).

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.