Saturday, October 11, 2014

A Message to Georgia's Next Senator (Whoever He or She May Be) About Judicial Selection

Restoring Openness, Transparency, Principles of Merit Selection and Diversity to the Process of Selecting Georgia's Federal Judges


The most enduring legacy that can be left by any President, or by any Senator, is in the composition and quality of the federal judiciary.  With lifetime tenure, federal judges often serve well beyond the terms of those who are involved in their appointments, and they often have the opportunity to have the last word on the meaning an enforcement of federal legislation.

The Constitution provides that federal judges are appointed by the President with the advice and consent of the Senate.  In the selection of federal district court judges, the Senate’s “advice and consent” process has included a custom known as Senatorial Courtesy, in which considerable deference is given to the views of the home-state Senators for the district in question.  The precise manner in which this custom is practiced, and the degree of deference accorded to the home-state Senators, has varied as the leadership of the Senate Judiciary Committee has changed.  Under the chairmanship of Patrick Leahy, the Judiciary Committee has declined to schedule a hearing for any district court candidate for whom a favorable “blue slip” has not been received from both of the home-state Senators.

Many Americans voted for the current President with the expectation that he would appoint federal judges through a process that was open and transparent; that the resulting appointees would have a demonstrated commitment to the rule of law and respect for individual rights; and that these appointees would fairly reflect the rich diversity of the districts in which they serve. This expectation was born of a recognition, among other things, that a representative judiciary is more likely to be an accountable judiciary, and that judicial diversity promotes impartiality by ensuring that all viewpoints perspectives and values are part of the decision-making process.

However, during the term of this President, Georgia has had no Senators from the President’s party. In the view of many Georgians, the incumbent Senators have taken partisan advantage of the leverage given to them under the “blue slip” process, and they have used this leverage to advance an overly homogenous group of candidates, often without regard to residence, many of whose records are calculated appeal to the Senators’ most reactionary constituents.

Georgia’s next Senator will have the opportunity to restore common sense to the process by which the state’s federal judges are selected.  The process should be open and transparent; should employ principles of merit selection; should seek nominees with a demonstrated commitment to the rule of law and respect for the individual rights of all citizens; should seek a federal bench which is more reflective the state’s rich and increasing diversity. Judicial diversity promotes impartiality by ensuring that no one viewpoint, perspective, or set of values can persistently dominate legal decision making. 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. A lack of diversity poses a significant challenge for a judicial system that passes judgment on issues affecting African-Americans, women and other minorities.  Although Georgia is 31% African-American, only 19% of the State's federal judges are African-American.  At any given time since 1989, there has never been more than one full-time African-American judge on the U.S. District Court for the Northern District of Georgia.  There has never been an African-American female on the Northern District bench or anywhere else in the Eleventh Circuit.

Merit Selection and Transparency – An Example from the Carter Years

In 1976, at a time when there were no judges of color on Georgia’s federal courts, Presidential candidate Jimmy Carter argued that judges should be selected on the basis of merit alone; that panels of lawyers and laymen should be appointed to suggest qualified nominees.

Following Carter’s election, with the Presidency and the Congress in the hands of a single party for the first time in several years, Congress in 1977 enacted the Omnibus Judgeship Act, which created 152 new federal judgeships, which resulted in the largest one-shot increase in the nation’s history up to that time.  The Act also empowered the Administration to establish “standards and guidelines” for choosing federal district judges, including a guideline that urged the appointment of more African-American and female judges.  While the Justice Department emphasized that the Act merely established “guidelines,” President Carter urged individual Senators to set up merit selection commissions, and the Office of White House Counsel was fairly aggressive in urging the consideration of candidates from diverse backgrounds.

President Carter was ultimately called upon to fill six positions on the Northern District of Georgia, and there was considerable public involvement in the discussions leading to the filling of these positions. 
In 1978, the Executive Committee of Atlanta’s Gate City Bar Association spent considerable effort raising awareness about the total lack of African-American federal judges in the Deep South, and the suggestion soon began to take hold that at least one of the Atlanta appointees should be an African-American.  The Presidents of the Gate City Bar Association and the Georgia Conference of Black Lawyers traveled to Washington to meet with Deputy Attorney General Michael Eagan who, within the Justice Department, had the responsibility for coordinating the judicial selection process.  In this meeting, Egan felt the need to look outside the Northern District of Georgia for qualified candidates, suggesting that the President of the Georgia Conference should relocate to Atlanta from Augusta, or that a prominent State Representative should relocate to Atlanta from Savannah.  Among Atlanta’s majority bar, there was considerable sentiment that one of the appointees should be African-American, and that that the appointment should go to one of the very few African-American partners in a majority law firm. 

Among community-based groups within the African American community there was considerable feeling that, because the community was so highly diverse, there should be more than one African-American appointee.  Moreover, prevailing community-based sentiment was that the appointees should be individuals who had paid their “dues” by serving the community.  Many who shared this sentiment urged the appointment of Horace T. Ward.  Ward had been the first plaintiff to challenge segregation at the University of Georgia, had been part of the legal team that brought an end to that segregation, and had been part of the legal team which brought an end to the all-white jury pools that existed in some Georgia counties.  He had been the First African-American to serve on what was then called the Civil Court of Fulton County, and the first African-American to serve on the Superior Court of Fulton County.  He was known to agonize over sentencing decisions and, among all of his colleagues on the Fulton Superior Court, he had the lowest reversal rate.  He had been the second African-American to serve in the Georgia State Senate since reconstruction, and one of his State Senate colleagues was now President of the United States. 

Both of Georgia’s Senators frequently reached out to members of the community to gauge community sentiment with respect to these judicial appointments, either directly or through members of their respective staffs (including Curtis Atkinson from the staff of Senior Senator Herman Talmadge, and Tommy Dortch from the staff of Junior Senator Sam Nunn). Senator Talmadge had served as Governor at the time of Horace Ward’s unsuccessful application to the University of Georgia.  In a meeting with the President of the Gate City Bar Association, Senator Talmadge made it clear that he and Judge Ward had some "unfinished business" to take care of, and that the pending judicial appointments presented a suitable opportunity to take care of it.

In 1979, Atlanta hosted a meeting of the National Bar Association's Judicial Council, which was then chaired by Judge Ward. The luncheon speaker for the meeting was the American Bar Association's Immediate Past President William B. Spann, Jr., who took the occasion to urge the appointment of Judge Ward to the federal district court in Atlanta.
Later that year, Judge Ward became the only person of color to be nominated and confirmed to Georgia’s federal courts under President Carter.  In the neighboring State of Alabama, President Carter appointed two judges of color.

The Current Opaque Process
During the term of the current President, a number of vacancies have arisen on the U.S. District Court for the Northern District of Georgia.  In the absence of any evidence that Georgia’s Senators would take any action with respect to these vacancies, Georgia's Democratic House members convened a panel, chaired by Buddy Darden, to vet and recommend candidates for existing judicial vacancies in the Northern District Court.  This panel proceeded with a high degree of secrecy. Nevertheless after the panel submitted its recommendations, Georgia's Senators made it clear that they had no obligation to respect this process.

Early in 2010 representatives of the Gate City Bar Association met with members of Georgia's House delegation to discuss this process and, on June 25, 2010, four members of Congress sent a letter asking the White House Counsel to meet with Gate City Bar leaders to discuss the issue.  On June 29, 2010, a Gate City Past President appealed to Jimmy Carter and Sam Nunn, asking them to intervene.  There was no response from the White House Counsel.  On July 14, 2010, the President announced his intention to nominate two individuals (whose nominations were ultimately confirmed) to some of the existing vacancies, to the Northern District Court.  These nominees included one white female who resided in the Northern District of Georgia, as well as an African-American male who resided in the Middle District of Georgia.

Following the President’s announcement of July 14, 2010, the President of the Gate City Bar Association joined in issuing public statements about the nomination process, and about the President’s failure to nominate an African-American lawyer who actually resided in the Northern District. These statements led to a meeting with White House Counsel Robert Bauer, in which it was noted that no African American female had ever been appointed to the Northern District Court or any other federal court in the Eleventh Circuit. There has been no similar meeting between Atlanta’s minority bar leaders and the White House Counsel since this meeting in the Summer of 2010.  Shortly after this meeting, though, the Senators announced two candidates whom they could support, one of whom was Linda Walker, an African American federal magistrate judge.  Following this announcement by the Senators, the White House nominated Natasha Silas (a federal public defender) and Linda Walker, as a package, to fill positions on the Northern District of Georgia.  Georgia’s Senators declined to return “blue slips” on Ms. Silas.  Because the nominations of Ms. Silas and Judge Walker were presented as a package, no hearing was convened before the Senate Judiciary Committee on either nominee, and Chairman Leahy ultimately returned both nominations to the White House.

In the summer of 2013, rumors began to surface of a package deal that was being supported by the Senators.  This package included two proposed nominees to the Eleventh Circuit, and four proposed nominees to the Northern District Court, including one African-American female.  As part of their price for approving the Eleventh Circuit nominees, the Senators extracted an agreement that the list of proposed District Court nominees would include Mark Cohen, a lawyer who had successfully argued to uphold Georgia’s Voter I-D law (a law widely regarded as a tool of voter suppression) as well as Michael Boggs, a Georgia Court of Appeals Judge who, as a legislator, had voted to preserve the Confederate Battle Emblem on the State Flag, had voted to restrict reproductive choice, and had voted for a Constitutional amendment banning same-sex marriage. There was no public process for vetting these nominations before they were announced, unlike previous years, in which the President and the Senators typically sought input on judicial nominees from leaders and organizations in the community to be affected.

Advocacy for Action met with one of the individuals who was involved in brokering this package deal with the Senators, and this individual was specifically asked whether it would be possible to seek community input regarding this package.  Advocacy for Action was told that there was no interest in seeking community input, and that those involved in putting this deal together were aware that the deal would draw significant community opposition.

Beginning on August 27, 2013, several bar groups (including the Gate City Bar, the Georgia Association of Black Women Attorneys, and Advocacy for Action) sent letters to the President about this proposed deal.  The first of these letters, and the rumors of this proposed deal, first became public in a September 10, 2013 article in the Daily Report.  On or about September 17, 2013, four members of Congress sent a letter to White House Counsel Kathryn Reumler, expressing shock and disappointment over the proposed deal and over the process by which this deal had come about.

On October 10, 2013, Georgia's Congressional Democrats met with staff of the White House Counsel to insist on a more open process for judicial selection.

The White House formally nominated the individuals on this slate beginning on December 19th, despite the calls for a more open selection process.  On December 23, 2013, Georgia’s House Democrats, together with several Georgia recipients of the Presidential Medal of Freedom, called on the White House to withdraw the nominations. Instead, the nominations expired at the end of 2013 end and were re-submitted on January 6, 2014.  No less than two dozen national progressive and civil rights organizations eventually called on the Senate to reject at least the nomination of Judge Boggs.  Later in the year, the President nominated an African American female to the U.S. District Court for the Middle District of Georgia. 

The Seven Georgia nominees (two for the Eleventh Circuit, four for the Northern District of Georgia, and one for the Middle District of Georgia) appeared jointly before the Judiciary Committee on May 13, 2014. In June of 2014, the Judiciary Committee voted to recommend full Senate consideration of six of the seven Georgia nominees, excluding Judge Boggs.  On July 21, 2014, the full Senate voted to confirm the appointment of Judge Julie Carnes to the Eleventh Circuit.  On September 8, 2014, the full Senate voted to confirm the appointment of Judge Jill Pryor to the Eleventh Circuit.  The Senate has scheduled a vote for on November 13, 2014 – after the election – with respect to Leigh Martin May, one of the District Court nominees.  To our knowledge, no vote has yet been scheduled with respect to the remaining Georgia nominees who were reported out of the Judiciary Committee (Northern District nominees Mark Cohen and Eleanor Ross, and Middle District nominee Leslie Abrams).  

The Present Opportunity

It is submitted that the difficulties which have been experienced in confirming the President’s nominees to Georgia’s federal courts nominees result in part from the flawed process by which those nominees were selected, and that a more satisfactory outcome might be produced by employing a process which is more open, transparent and inclusive. 

Those nominations which are not confirmed by the end of the year will expire, and the President will have to decide whether to resubmit the current nominations or to submit new ones.  Whether it will be possible to reach a decision on any nomination in the new Congress is an open question.  In any event, the expiration of the current nominations will present an opportunity to eliminate the element of partisan extortion on the part of the Senators, and to introduce a level of openness, transparency and bipartisan cooperation which has been absent from the process in the last several years.

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