By R. Robin McDonald
Daily Report, September 10, 2013
Georgia's
Republican U.S. senators have cut a deal with state Democrats that, if approved
by the White House, would fill six judgeships on Atlanta's federal appeals and
district court benches, Georgia lawyers familiar with the nomination process
have told the Daily Report.
The
package deal would remove roadblocks thrown up by Senators Saxby Chambliss and
Johnny Isakson that have held up the confirmation of Atlanta attorney Jill
Pryor, a partner at Bondurant Mixson & Elmore, for the Eleventh U.S.
Circuit Court of Appeals. Pryor was nominated in February 2012.
The
deal also recommends the elevation to the Eleventh Circuit of U.S. District
Court Chief Judge Julie Carnes of the Northern District of Georgia. Carnes was
appointed to her current post by President George H.W. Bush in 1992.
Carnes'
move would create a fourth vacancy on the district court in Atlanta, where
judges who left in 2009, 2010 and this year have yet to be replaced.
The new
bargain includes the nomination of Leigh Martin May, a personal injury and
product liability attorney at Butler Wooten & Fryhofer, for the Northern
District bench. May was on a 2009 list of potential nominees that was sent to
the White House by a committee appointed by members of Georgia's Democratic
congressional delegation; May's law partner, James Butler, was a member of that
committee. Chambliss and Isakson initially rejected May and others as nominees.
In
return for their agreement not to block the nominations of Pryor and May,
Chambliss and Isakson would name candidates to the other three district court
vacancies. They include Troutman Sanders partner Mark Cohen,
whose name the senators put forth first in 2010 for the Northern District bench
and in 2011 for the Eleventh Circuit. Their remaining two picks are two state
court judges appointed by Republican Governor Nathan Deal—DeKalb County State
Court Judge Eleanor Ross and Judge Michael Boggs of the Georgia Court of
Appeals.
Ross, a
former Fulton County assistant district attorney and the only African-American
among the prospective nominees, was appointed to the DeKalb state court bench
by Deal in April 2011. Deal named Boggs—then a Waycross Circuit Superior Court
judge—to the Georgia Court of Appeals in January 2012. Waycross, as well as
Boggs' home in Pierce County, are in the Southern District of Georgia. If Boggs
is nominated, it would be the second time the White House reached outside of
the Northern District for a federal judicial candidate. At the suggestion of
Georgia's senators, President Obama appointed then-Superior Court Judge Steve
C. Jones of Athens, in the state's Middle District, to the Northern District
bench in 2011.
Pryor,
May, Cohen and Ross declined to comment for this story. Carnes and Boggs could
not be reached.
A
spokeswoman for Chambliss declined to comment. Isakson's staff could not be
reached.
Ken
Canfield, a partner at Doffermyre Shields Canfield & Knowles who last year
became the liaison between state Democrats and the White House regarding
Georgia's federal judicial nominees, said he could neither confirm nor deny
that a deal had been reached. In July, he told a gathering at a program on the
federal judiciary that after months of stalemate, discussions were taking place
between Georgia's two senators and the White House to find acceptable nominees.
The
bargain now on the table does not sit well with members of the Gate City Bar
Association and the Georgia Association of Black Women Attorneys.
In an
Aug. 27 letter to the president concerning nominees to the Northern District,
members of Advocacy for Action—a joint project of Gate City and GABWA to
promote an "accountable and representative" judiciary—said they were
"highly disturbed" about the deal because it includes only a single African-American
woman and a candidate "known for his advocacy against voting rights and in
favor of voter suppression."
Although
the letter does not mention Cohen by name, for three years, he served as a
special assistant attorney general defending Georgia's voter ID law. The White
House had vetted Cohen as a possible candidate for the Eleventh Circuit in
2011, people familiar with the nomination process told the Daily Report. The
White House tentatively decided to tap him instead for the district court
shortly after Attorney General Eric Holder in December 2012 cited new voter ID
laws similar to Georgia's as examples of attacks on voting rights.
Cohen's
opposing counsel in the voter ID litigation included Emmet J. Bondurant, the
senior partner at Pryor's law firm.
The
Advocacy for Action letter urged the White House "not to capitulate to a
compromise that decreases the number of African-American females to one"
on the current list of proposed nominees to the federal bench in Georgia. The
group also threw its support to U.S. Magistrate Judge Linda Walker as a
candidate for a district court seat, presumably to replace either Boggs or
Cohen on the new nominee list. The group offered to supply names of
African-American candidates "who live and practice in the Northern
District and who are sensitive to our community's concerns regarding important
issues such as discrimination, voting rights, and the sentencing of criminal
defendants."
The
group's support of Walker was interesting. Selected as a federal magistrate
judge in 2000 by the judges of the Northern District, she remains the only
African-American woman to serve as a federal judge in Georgia. But she has been
a favorite of the Republicans. Chambliss and Isakson suggested her as a
district court nominee after the Democrats' selection committee rejected her in
2009, in part because of her conservative judicial philosophy.
The
White House nominated Walker to the Northern District in 2011, and Isakson and
Chambliss returned blue slips to the U.S. Senate Judiciary Committee, signaling
their approval.
But
Chambliss and Isakson refused to return blue slips for Natasha Perdew Silas, a
federal public defender in Atlanta who had the support of the Gate City Bar and
was nominated with Walker as an apparent package deal. In December 2012, with the
Walker and Silas nominations at an impasse, the White House withdrew the
nominations of both women.
The
Gate City-GABWA task force letter to the White House also lamented the process
for filling the vacancies on the district and appellate benches, saying that it
"involved little in the way of consultation with the organized black
bar" and that those involved in the process "have little exposure to
many of the great lawyers who are known to us."
The
letter also suggested that "such a flawed process has the potential to
produce a highly unfortunate outcome."
The letter was signed by Suzanne Ockleberry,
an attorney with AT&T and past president of GABWA; and Charles Johnson, an
attorney at Holland & Knight in
Atlanta and a former president of the Gate City Bar. Ockleberry referred
questions to Johnson. "Our letter talks about process, lack of involvement,"
Johnson said. "Beyond that, there is a distinct lack of
transparency."
Last Friday, GABWA sent a separate letter to
the White House that also urged the appointment of two African-American women
to Georgia's federal bench.
That letter, signed by GABWA President
Jacqueline Bunn, executive director of the Georgia Criminal Justice
Coordinating Council, urged the White House to nominate at least two
African-American women "who have practiced in the Northern District and
who are part of the community" and asked for a meeting with the White
House counsel to discuss the matter. Bunn could not be reached for comment.
The letter pointed out that there has never
been an African-American woman appointed to a district court judgeship in
Georgia or the Eleventh Circuit. It noted that there has never been more than
one African-American man serving as an active judge on the Northern District
bench at any time in the district's history. Currently, Judge Steve Jones is
the only active African-American judge on the Northern District bench. Judge
Clarence Cooper took senior status in 2009, and his former seat is one of those
that remains vacant.
"[I]t is time for meaningful diversity on
the federal bench in Georgia," the letter continued. "Achieving
diversity is particularly important for the federal judiciary given the
constitutional issues handled as a matter of routine."
This article originally
appeared in the print edition under the headline “Georgia lawyers say
Chambliss, Isakson and state Democrats wait for OK from Obama.”
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