Two political insiders—a Democrat and a Republican—said Wednesday that Georgia's U.S. senators and the Office of White House Counsel are having "conversations" about filling the state's growing number of empty federal judicial posts.
Any dialogue between Republicans Saxby Chambliss and Johnny Isakson and President Barack Obama's lawyers could be viewed as welcome news, given how federal judicial nominations in Georgia have stalled. But the two party insiders, along with other participants in a candid panel discussion over judicial nominations, illustrated just how politically polarized the process has become.
Anne Lewis, general counsel of the state Republican Party, said that after months of stalemate, "There have been more talks between the senators' offices and the White House."
She also expressed "great confidence the logjam in our state may be coming to an end."
But Lewis was less than sanguine about the chances Atlanta litigator Jill Pryor would be seated on the Eleventh U.S. Circuit Court of Appeals, despite Obama's decision to renominate her this year. Georgia's senators, Lewis said, referring to the traditional way senators approve nominees from their home states, "have made it clear that a blue slip would not be returned on that nominee in that position."
Atlanta attorney Ken Canfield, who is the current point man between state Democrats and the White House on Georgia's federal judicial nominees, echoed Lewis in telling the gathering, "Discussions are taking place between the senators and the White House."
But, he added, "I'm not going to comment on whether I am optimistic about the nominations going forward."
Right now, the U.S. District Court for the Northern District of Georgia has three vacancies, two of which are considered "judicial emergencies" by the Administrative Office of U.S. Courts because they have been vacant for so long and the district's caseload is so high.
The Eleventh Circuit also has two open posts, with a third vacancy pending because Chief Judge Joel Dubina has said he would like to take senior status. But Dubina said he may postpone his retirement until at least one of the vacancies on the appellate bench is filled.
Pryor's nomination to the Eleventh Circuit is the only one pending. The White House withdrew the names of two nominees for district judgeships—federal public defender V. Natasha Perdew Silas and U.S. Magistrate Judge Linda Walker—after Chambliss and Isakson made it clear that they would support Walker but not Silas.
Wednesday's discussion, sponsored by the Atlanta chapter of the American Constitution Society for Law and Policy and the Gate City Bar Association, was wide-ranging as to why there are more than 80 vacancies on the federal bench across the nation and whether there is any hope that those posts will be filled during Obama's second term.
Panelist Richard Vining, who teaches political science at the University of Georgia, said that Chairman Patrick Leahy of the Senate Judiciary Committee, has, unlike some of his predecessors, remained adamant that the panel will not take up any judicial nomination unless the nominee's home state senators have returned their blue slips. That, he said, has complicated the process in states such as Georgia, where both senators are Republicans.
Canfield pointed to what he said was Senate Republicans' "startling" use of the filibuster to delay confirmation votes on judicial nominees, even though the vast majority eventually were approved by more than 90 percent of senators.
The process of submitting recommended nominees to the White House has also, at least in Georgia, operated largely in secrecy. Former U.S. Rep. Buddy Darden, who chaired a committee named by Georgia's Democratic members of Congress to recommend candidates to the Obama White House in 2009, called for more transparency. Darden told the Daily Report after the discussion ended that his committee's decision to operate in secret was the result of a directive from a previous White House counsel, but he said the process should be more open in the interest of broader public discussion about who should sit on the federal bench in Georgia.
Only two of the candidates that Darden's panel recommended to the White House have joined the bench—Judges Amy Totenberg and Steve Jones of the Northern District.
Panelist Stephen Bright, president and senior counsel of the Southern Center for Human Rights in Atlanta, suggested that the blue slip process, like the Senate filibuster, is a procedural tool that was once rarely used but is now being invoked and "abused more and more and more."
The conversation inevitably returned to the stall in Georgia. Two of Obama's district court nominees have been withdrawn by the White House, and Georgia's two senators oppose Pryor, a partner at Atlanta's Bondurant, Mixson & Elmore, for the appellate bench.
Chambliss and Isakson have told the White House they prefer Troutman Sanders partner Mark Cohen and have refused to approve Pryor's nomination, although they notified the White House last year that they would not object to her nomination to the district court.
U.S. District Judge Clarence Cooper, who took senior status in 2009 and whose seat is one of three on the Northern District bench that are vacant, attended Wednesday night's discussion.
Cooper said that he thought the now withdrawn nominations of Walker and Silas presented "an ideal compromise." Silas, but not Walker, had been on the slate of nominees recommended by Darden's committee in 2009.
Isakson and Chambliss consistently have declined to discuss potential nominees or the nominations process, but the senators established their own six-person committee of Georgia attorneys to advise them. Their committee recommended Walker, Cohen and former State Bar of Georgia president S. Lester Tate as candidates they would approve over Silas.
The Daily Report previously has reported that both senators had gone on record as being opposed to Silas, and a Senate Judiciary Committee staff member told the newspaper that they never returned a blue slip for Silas or sent letters to the committee explaining why they had decided to withhold their support. Both Silas and Walker are African-American women, but some Georgia Democrats had expressed concern that Walker's judicial philosophy is far more conservative than Silas'.
The two women were nominated as a package deal, Darden said Wednesday. "I think the White House thought we had a deal with the senators" that would have insured the confirmation of both women, he said. "Apparently, the senators didn't think we had a deal. They took Walker, but not Silas. … We lost the opportunity to have two who would have been good judges." Darden also suggested that if Silas had been a prosecutor rather than a public defender, "She would have been on the bench today."
Lewis, the state GOP's general counsel, suggested that while Democrats may have thought Walker and Silas were a package deal, that was not the perception of the state's Republican senators. "The senators never thought they had a deal," she said. "They were shocked to find these two nominations were tied together." When presented with the choice of "all or nothing," Lewis continued, "Sometimes what you get back is nothing."
Lewis also advised the gathering: "It's incumbent on people who recommend nominees to know whether their senators will return blue slips on the nominees. It shouldn't be that the first time the senators hear the names of nominees is the day they are nominated," she said. Likewise, she continued, "It shouldn't be that the first time the White House hears there are objections [to a nominee] is the day they are nominated."
The White House and Georgia's senators have reached a similar impasse over Pryor. In January 2012, while the American Bar Association was vetting Pryor and Cohen for federal judgeships, Chambliss and Isakson sent a letter to the White House saying they would support Cohen for a vacant spot on the Eleventh Circuit and Pryor and Walker for open spots on the Northern District bench. The White House ignored the letter, nominating Pryor for the Eleventh Circuit just a month later.
"The senators have made it clear that a blue slip would not be returned on that nominee in that position," Lewis explained. But despite "a clear signal" from Chambliss and Isakson, the White House renominated Pryor last January after her first nomination expired when the 112th Congress adjourned last December.
"I don't think anybody can accuse Johnny Isakson and Saxby Chambliss of being unreasonable," Lewis said. "The president has the right to nominate whoever he wants to nominate. …But they also have a right to not vote for that person."