Introduction
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).
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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