The American Bar Association and the FBI have finished vetting two of four candidates on a list of prospective nominees for the U.S. District Court in Atlanta, a former U.S. congressman told Georgia law students Friday.
Former U.S. Rep. Buddy Darden—who chaired Georgia Democrats’ judicial selection committee in 2009—said during a panel discussion Friday at the University of Georgia’s School of Law that a “logjam” that has stalled the appointment of federal judicial nominees in Georgia “has been broken.”
Darden told students and faculty attending the law school’s annual Georgia Symposium on Law & Politics that it was his “understanding” that federal authorities and the ABA have completed their vetting of Leigh Martin May, a partner at Butler Wooten & Fryhofer, and Troutman Sanders partner Mark Cohen for empty seats in the Northern District of Georgia. The vetting of two more candidates for the Northern District bench, whom he did not name, is still to be completed, he said.
Darden said people associated with the law school as well as other friends of his “have been called by the FBI and the ABA and tell me that the process is in place.” He also said he anticipates the White House will announce nominations for the state’s open federal judicial posts before the end of this year.
Darden was joined on the panel by Heath Garrett, U.S. Sen. Johnny Isakson’s former chief of staff and a partner at Garrett McNatt Hennessey & Carpenter 360; U.S. District Judge Clay Land of the Middle District of Georgia in Columbus; and Professor Richard Vining, an associate professor of political science at UGA.
Darden later told the Daily Report that he has been told the ABA also has begun inquiries about Georgia Court of Appeals Judge Michael Boggs, who was appointed to the state appellate bench last year by Gov. Nathan Deal, for a third open seat on the Northern District. He added that he understood vetting of U.S. District Chief Judge Julie Carnes for a seat on the U.S. Court of Appeals for the Eleventh Circuit is under way.
Darden said he had no independent information about the prospective fourth candidate for the Northern District bench, who presumably would fill Carnes’ slot should she be confirmed as a circuit court judge.
Georgia lawyers familiar with the nomination process who spoke anonymously because of the sensitivity of the negotiations have told the Daily Report that the fourth candidate is DeKalb State Court Judge Eleanor Ross, a Deal appointee who is the only African-American prospective nominee on the list of proposed Northern District nominees.
Carnes, if nominated for the Eleventh Circuit, would be considered along with Jill Pryor, a partner at Atlanta’s Bondurant, Mixson & Elmore who twice has been nominated to the Eleventh Circuit by President Barack Obama. To date, Georgia’s two U.S. senators, both Republicans, have blocked Pryor’s nomination. Georgia lawyers familiar with the process have told the Daily Report that Isakson and Sen. Saxby Chambliss have agreed to withdraw their objections to Pryor and to May, whom they initially rejected as a district court candidate in 2009, as part of a package deal that would include the nominations of Carnes to the federal appellate court, and Boggs, Cohen and Ross to the district court.
Darden said Friday that the logjam that kept the vacancies from being filled—including two seats that were empty for most of the president’s first term—was broken after the White House designated Atlanta attorney and Obama fundraiser Ken Canfield, a partner at Shields, Doffermyre, Shields, Canfield & Knowles in Atlanta, to represent it in negotiations with Georgia’s senators and with a six-man committee of lawyers who have been advising them.
Darden said that when he chaired the committee and recommended judicial candidates to the Obama administration, it “was not allowed to interact with the senators,” he said. “If I could have gone to the senators or their representatives, we could have filled the vacancies quite a bit earlier.”
He said the process was also hampered by a succession of three White House counsels since 2009 and by the president’s former chief of staff, Rahm Emanuel, who Darden said “didn’t want to spend the President’s capital on judicial nominations” during his first term when he was trying to pass the Patient Protection and Affordable Care Act and the 2009 economic stimulus package.
“We are moving toward a resolution of our situation in Georgia,” he said. “I think the senators have exercised their prerogative to stall the nominations, perhaps because they were not consulted by the administration, perhaps because the administration was unrealistic in its nominations and expecting that they wouldn’t be questioned.”
Darden, whose 13-member committee operated in secrecy at what he said was the direction of the White House before it disbanded in 2011, suggested that the nominating process “has not been as open as it could be.” In 2009, Darden’s committee submitted to the White House a confidential list of a nearly a dozen recommendations that was subsequently made public by the Daily Report for what were then four open seats on the Northern District bench.
Two of those slots were filled in 2011 by current U.S. District Court Judges Steve Jones and Amy Totenberg. A third slot became vacant this year when U.S. District Judge Charles Pannell took senior status.
Vining suggested that the process has also been delayed by a policy that U.S. Senate Judiciary Chairman Patrick Leahy, D-Vt., has enforced that no judicial nominee will receive a confirmation hearing unless both his or her home state senators have given their approval. Vining called Leahy’s rigid enforcement of what he said is a senatorial courtesy “unusual” and suggested that previous committee chairmen, among them U.S. Sen. Orrin Hatch, R-Utah, occasionally held confirmation hearings even when a home state senator did not return what is known as a “blue slip” signaling their willingness to allow confirmation hearings to go forward.
“The back-and-forth politicization of the nominations along with senatorial courtesy … has stalled the process as well because the senators [in Georgia] and the administration disagree on who should fill the seats,” he said.
Vining said that currently, states with two Republican senators are taking, on average, three to four months longer to confirm judicial nominees than states where senators are either both Democrats or from both parties.
Garrett, Isakson’s former chief of staff, suggested that delays in naming or confirming judicial nominees is the result of “the macro principle of checks and balances matching up with the Wild West of modern politics.”
“I won’t say gridlock is good,” Garrett continued. But, he continued, Democrats and Republicans “have a legitimate ideological and philosophical debate about the role of the judiciary and federal law enforcement in the federal system.” Georgia’s two senators, he said, “take very seriously their constitutional responsibility for advice and consent.”
Garrett also said the blue slip process is “a good check on the system. It’s a protection of minority interests. We Republicans are a minority in the Senate.”
He also agreed with Darden that if the White House had allowed Darden or members or his committee to meet with the senators’ six-man committee, “we could have moved the process along” far faster.
But he insisted that the process historically “has produced qualified nominees” in Georgia. “The process is working,” he said. “It may not be working well, but it’s not designed to move efficiently. … The White House always has the opportunity to, and should always seek, the advice and consent of the U.S. Senators.”
Land, who was nominated to the federal bench by George W. Bush in September 2001 and confirmed just two months later, suggested that judicial nominations have a history of controversy as old as the republic, and, “We need to maintain some perspective historically.” As an example, Land singled out the “Midnight Judges Act” of 1801 in which President John Adams —just before the inauguration of Thomas Jefferson—attempted to stuff a string of judgeships newly created by Congress with Federalist judges more sympathetic to Adams’ political philosophy of a strong central government.
“I have a great respect for the confirmation process,” Land said. Calling federal judgeships with lifetime appointments for posts not directly responsible to the electorate “a remarkable thing,” the judge said that input from the legislative branch “establishes a connection between the people and the judges who are appointed for life … . While the process seems to be bogged down, it is an important process.”