Thursday, October 23, 2014

Georgia's JNC Members on How to Seek a Judicial Appointment

JNC Members: Bench Diversity Not Black and White
Greg Land
Daily Report,  October 23, 2014
A member of the Judicial Nominating Commission told a group of Asian-American lawyers seeking advice on how to get on the bench that selection of judges is "an inherently political process."
"Not Republican-Democrat politics," Scott Delius added Tuesday night. "Personal politics. Are you well-liked? Are you well-connected?"
Delius' comments reflected the overall theme delivered by three JNC members during the Georgia Asian Pacific American Bar Association's discussion on how to get on a short list the JNC sends to the governor for consideration when a judicial vacancy arises.
The event was held in McKenna Long & Aldridge's SunTrust Plaza offices, and included a spirited discussion of diversity—both on the bench and among the JNC's members—moderated by DeKalb County State Court Judge Alvin Wong.
He promised to address "the white elephants in the room" as he genially grilled JNC cochairman Pete Robinson and members B.J. Pak and Delius concerning the panel's method of selecting potential judges, and whether that system was as fair as it might be.
Wong—Georgia's first elected Asian-American judge—was joined by Court of Appeals Judge Carla Wong McMillian, U.S. Magistrate Judge Justin Anand, Duluth Municipal Court Judge Chung Lee and Meng Lim of Bremen, who in August was elected to the Tallapoosa Circuit Superior Court.
Robinson, the managing partner of Troutman Sanders' Atlanta office, cochairs the JNC with McKenna partner Randy Evans.
Robinson kicked off the discussion by laying out the steps for filling a vacancy on a Georgia court. Robinson said there was generally a six-week process between the time a seat opens up and when the 21-member panel sends a short list of three to five names to Gov. Nathan Deal.
The detailed questionnaires and résumés that candidates submit are important, said Robinson, but so is input from local bar associations and organizations.
"We absolutely solicit interest groups," said Robinson. "We spend a lot of time listening to them and appreciate this input, and getting calls from someone suggesting or opposing a candidate."
Such calls should be brief, he noted: "I'm not going to spend 30 minutes listening to someone tell me what an SOB someone is."
Another key are the interviews with candidates who make the first cut. They last only about 10 minutes, "but those 10 minutes are very important," said Robinson. "There's two or three minutes of talking about yourself, a few minutes of Q&A with the members, then Randy or I will close it off with a question."
"It's a very simple process," said Robinson, "and the standard that I use is ... I'm looking for someone who is smart and fair, maybe a little more weighted to fair."
Judges must be compassionate, said Robinson, and understand that the people who appear before them are already under stress.
“My one fundamental fear is, ‘Is that judge going to develop Robe-itis?’” he said.
“If you come in and tell me how smart you are, that you’re smarter than all the other nominees or applicants, you’re never going to make the list,” Robinson said.
Robinson said the current JNC is composed of 17 men and four women. It includes four African-Americans and one Asian-American: Pak.
Wong used that statistic as his jumping-off point for the diversity discussion.
"What do you say about the lack of [minority] representation on the commission?" he asked the panelists. Would it make sense to have more minorities appointed?
Perhaps, said Delius, but the makeup of the judiciary itself would seem more important than the makeup of the JNC. Delius circled back to Robinson's comments concerning the need for ethnic bar associations and organizations to weigh in.
"I want to underscore what Pete said about how important what these groups have to say is," he said. Such input may well decide the panel's ultimate decision, said Delius.
Some bar associations rate candidates' qualifications, Robinson added, and he keeps careful notes of such ratings and who provided them.
"The wider the support, the better," Robinson said.
Pak, a Republican member of the state House of Representatives, said the makeup of the JNC was generally more a product of whether appointees were known to the governor or people whose opinions he values.
"If you look at the composition of the JNC right now, it's not really partisan," said Pak. "It's more like, does the governor know that person, are you a known commodity?"
While the African-American bar is well-established in state and local bar associations, Pak said, "We haven't done a good job in the Asian community."
Pak urged his listeners to become active in other bar associations as well as the ethnic organizations.
"Having allies on other bars is important," he said.
Delius said, "It's the person that walks into the room that no one's heard of who is going to have a hard time."
Wong asked, given criticism of the JNC's own lack of diversity, "should it at least appear more diverse? Does that [suggestion] ever get talked about, sent up the food chain?"
Pak said his own appointment pointed to Deal's desire to broaden the demographics of the JNC and the judiciary as a whole.
"I know they're very concerned about it, because they call me all the time for candidates," Pak said. "We need to get the judiciary to reflect the community; I'm not so worried about the makeup of the JNC."
Delius said the JNC will often look at a slate of candidates and wonder why more women and minorities aren't included, and often conclude that qualified candidates are simply not applying.
"People need to step up and apply," Delius said. He cited a recent vacancy in which one Asian, one African-American and one Hispanic had applied along with a lengthy list of white candidates.
"You can't sacrifice quality and merit just to get somebody on there," said Delius, citing people "who are really qualified," but are unwilling to step out of rewarding practices to join the bench.
"It's the pipeline that's the problem, not the picking," Delius said.

Thursday, October 16, 2014

Embattled Alabama Judge Comes to Atlanta to Prove He's Complying With Diversion Program

Alyson M. Palmer
Daily Report, October 14, 2014


As beleaguered U.S. District Court Judge Mark Fuller of Alabama made another court visit in Atlanta on Tuesday, an Alabama news outlet was seeking to unseal court documents about his past.
Fuller was arrested Aug. 10 on allegations he assaulted his wife at the Ritz-Carlton in downtown Atlanta. Last month, he agreed to spend up to 24 weeks in a domestic violence intervention program and undergo an alcohol and substance abuse assessment to resolve the resulting misdemeanor battery case against him. His Atlanta criminal defense lawyer, Jeffrey Brickman, has said that Fuller made no admission of guilt and that if Fuller completes the program, the case against him will be dismissed and his arrest record expunged.
According to Brickman, Tuesday's court appointment was for Fuller to provide the county solicitor's office with proof that he's complying with the requirements placed on him by the pretrial diversion program.
Leaving the courthouse after his appointment around 9 a.m., Fuller declined to comment. He carried a copy of "Quiet Strength," former NFL coach Tony Dungy's faith-oriented memoir.
Meanwhile, an editorial posted Monday by, the online arm of the Alabama Media Group, which includes the Birmingham News, said the news organization had asked a Montgomery family court judge to unseal the file of Fuller's 2012 divorce proceedings. The editorial acknowledged that divorce cases are "intensely personal" but said Fuller's case presented "unusual circumstances."
Fuller's divorce file is of interest because of what is known from documents that were salvaged for public view before the matter was put under seal. An article posted on the website for the Reporters Committee for Freedom of the Press linked to documents filed in the divorce proceedings. They included a discovery request made by Fuller's then-wife asking him to admit, among other things, that he'd physically abused her and was addicted to prescription medication. Fuller moved to seal the case within two hours of that request being filed, citing security concerns for the parties and their children. A state court judge granted the motion a few weeks later, over the objection of Fuller's then-wife. An attempt by third parties to have the matter unsealed was rejected by the court later in 2012.
The editorial board of in August said Fuller should resign. This week's editorial said, "If Fuller does not resign, the only way to remove him from the federal bench would be impeachment and trial by Congress. That is a serious question and one for which Congress and the public should have all information and answers to many open questions." Specifically, the editorial wonders whether Fuller has a history of substance abuse and whether the August incident was "the first time Fuller hit a spouse."
The editorial noted that the U.S. Court of Appeals for the Eleventh Circuit is investigating Fuller in the wake of his arrest. "But that inquiry, today, lacks important information, because those facts are hidden inside a sealed court file in Montgomery County."
Birmingham attorney Barry Ragsdale said Tuesday that he hadn't seen the media group's request. "We have offered to the Eleventh Circuit our copy of the entire file," added Ragsdale.
He said the lawyer investigating the matter for the circuit was expected to be in touch with the lawyer who represented Fuller in the divorce, John Henig Jr. of Montgomery, so that he could interview the lawyer and review the file, although Ragsdale said he didn't think that had happened yet.
Ragsdale said he didn't know what position Fuller would take on whether the divorce record should be unsealed for the general public's review. "I know we've taken the position that the Eleventh Circuit is the proper place for that information to be analyzed and reviewed," he said. He said Fuller's former wife had ultimately joined Fuller in objecting to the unsealing of the divorce record in 2012 and will have a chance to weigh in on whether the file should be unsealed now.
Ragsdale said nothing in the divorce file amounted to even an allegation of domestic violence or drug abuse. He said people who think the divorce file will show Fuller is not a first offender "are going to be very disappointed."
An attempt to reach J. Floyd Minor, a Montgomery lawyer who handled the divorce for Fuller's former wife, was unsuccessful.

Wednesday, October 15, 2014

The Incumbent Protection Racket and Racial Gerrymandering: Page v. Virginia Board of Electors

By Leland Ware

In Page v. Virginia Board of Electors a three-judge panel held on October 7, 2014, that a Virginia Congressional redistricting plan violated the Equal Protection Clause of the Fourteenth Amendment because it was a racial gerrymander. 
Between 2000 and 2010, Virginia’s population grew by 13 percent. Because the growth was unevenly distributed the state was obligated to redraw its congressional districts to balance populations in each district. Virginia developed plan and submitted it to the U.S. Department of Justice for Section 5 preclearance.[1]
The plan was approved on March 14, 2012, based on a finding that it would not result in a retrogression of the ability of African American voters to elect candidates of their choice. (A retrogressive plan makes changes that reduce minority groups’ opportunities to elect candidates of their choice.)
A civil action was filed claiming Virginia used Section 5’s preclearance requirement as a pretext to pack African American voters into Virginia’s Third Congressional District and to reduce those voters’ influence in other districts. The redrawn District, the plaintiffs contended, violated the Equal Protection Clause of the Fourteenth Amendment.
The evidence showed that the legislature subordinated traditional districting principles, such as to compactness, contiguity and respect for political subdivisions, to racial considerations. “Packing” is a tactic that dilutes minority votes by putting as many minority voters into as few districts as possible to minimize the number of representatives they can elect. Virginia’s plan packed more African American voters into what was the only congressional district in Virginia with a majority-minority population represented by a black incumbent, Congressman Bobby Scott. This made adjoining districts whiter and safer for Republican incumbents.
Under the new plan the Third District’s voting-age population grew from 53.1 percent African American to 56.3 percent African American. Maps of the district showed it is an oddly shaped chain of predominantly African American communities, stretching from Richmond to Norfolk, loosely connected by the James River. The redistricting has been described as “one of the most aggressive gerrymanders in the country.”
The legislature used proximity to the James River to bypass white communities and connect predominantly African American populations in areas such as Norfolk, Newport News, and Hampton. Other evidence showed that the Third District was the least compact congressional district in Virginia. It split more voting tabulation districts than any other congressional district.
Virginia’s lawyers conceded that avoiding retrogression was the legislature’s top priority in drawing the 2012 plan. Former delegate William Janis, the legislation’s sole author, emphasized that his foremost objective in drawing Virginia’s congressional maps was ensuring that the Third Congressional District retained as large a percentage of African American voters as it had under the under the existing boundaries. Janis said he considered race to be the single, “nonnegotiable” redistricting criterion.
In cases where race is the predominant factor the redistricting plan must be subjected to the “strict scrutiny.” A racially motivated redistricting can be justified only when it has a “compelling justification” and the means chosen are “narrowly tailored” to achieving a legitimate governmental objective. In this case the Court found that compliance with Section 5 was a compelling state interest, but the means chosen were not narrowly tailored to achieving the legislation’s goals
The majority’s opinion noted that the Supreme Court has repeatedly struck down redistricting plans that went beyond what was necessary to avoid retrogression. As the Court explained, Section 5 “does not give covered jurisdictions carte blanche to engage in racial gerrymandering in the name of nonretrogression.” The panel ruled, 2-1, that race was the predominant consideration when Virginia’s legislators re-drew the boundaries of the Third Congressional District. This was a textbook case of racial gerrymandering. The avoiding retrogression justification was a pretext for packing African Americans in a single district. 
Page v. Virginia Board of Electors shows that efforts to undermine the voting rights of African Americans are longstanding and ubiquitous. The case is an example of the many abuses of the “incumbent protection racket” known as congressional redistricting.

[1] Section 5 of the Voting Rights Act (VRA) was enacted in 1965 to prevent changes in election practices in covered jurisdictions until the new procedures were determined by the Attorney General, or the U. S. District Court for the District of Columbia as not having a discriminatory purpose or effect. In Shelby County v. Holder the Supreme Court held in 2013 that it was unconstitutional to use the coverage formula contained in Section 4(b) of the Voting Rights Act to determine which jurisdictions are subject to the preclearance requirement of Section 5 of the Voting Rights Act. The Supreme Court did not rule on the constitutionality of Section 5 itself but the effect of the Shelby decision is that the jurisdictions identified by the coverage formula in Section 4(b) are no longer obligated to seek preclearance for the new voting changes.