Why Some Georgia Dems Decry Obama’s Judicial Picks

and why they are wrong to do so.

The big news in the Senate in the last few weeks was the decision to exercise the “nuclear option” of reducing the amount of votes needed for cloture from 60 to 51. This was a rule change instituted by the Democratic majority in the Senate and it changed the long-held rule that protected the rights of the minority. This has opened, well not a flood gate, but a spigot of judicial nominees that have long been blocked. But Georgia’s judicial nominees had not even reached the stage that the filibuster was necessary to stop them.

They hadn’t even had their blue cards returned.

What’s a blue card? Ok, so the Senate is the only legislative body that gets a nod overall on judges, but there is a long standing rule that the home state Senators can veto a President’s judicial selections for their state. They do this by refusing to return the blue cards given to them with the prospective jurists names on them back to the President. Georgia’s Senators, Saxby Chambliss and Johnny Isakson, hadn’t returned the 11th Circuit blue cards given to them in forever. There are 4 openings in the 11th Circuit (out of 12) that haven’t been filled for years. At least one of the open seats has been empty since 2005.

The chairman of Senate Judiciary determines the rules of the committee, and the blue cards haven’t always been treated with some deference. When Edward Kennedy was head of Judy (which started in 1980 or so) he would not allow the blue cards to hold up a nomination. Patrick Leahy went back to the tradition system of allowing a “pocket” veto in 2001 and it was the rule when I worked there in 2004.

To get a nominee in front of the Senate Judiciary that blue card must be returned. To get a vote on the floor of the Senate, the nominee must first get out of committee. So changing the filibuster rules did nothing to help the Georgia logjam. Obama had to get the blue cards back.

So he reached a deal with Isakson and Chambliss. He’d get five and they’d get one. The nominees are, reportedly, for the 11th Circuit, Jill Pryor and U.S. District Court Judge Julie Carnes, and for the district court, personal injury attorney Leigh Martin May, former Zell Miller chief of staff Mark Cohen, DeKalb County State Court Judge Eleanor Ross and Georgia Court of Appeals Judge Michael Boggs.

Among the nominees, only Eleanor Ross is black, and that has the Georgia Democratic Congressional Delegation (minus Barrow and Bishop), along with recent Presidential Medal of Freedom winner C.T. Vivian and Joseph Lowery, up in arms. She’s also the only Republican, a gambit they surely didn’t appreciate.

This deal has reportedly been in the works for a while, and prompted this letter from all of Georgia’s Democratic Congressmen back in September.

The lack of African-Americans on the bench has been a problem in Georgia for a long time. Just recently, a retiring judge in the Chattahoochee circuit, which is 42% Black, wrote to Deal to alert him that when he, the judge, retired, the entire bench of that 5 county area would be staffed by white men. Such a disparity between the citizenry and the jurists is one that should be corrected.

But the fragile relationship between the President and the Senate, and specifically the levers that can be pulled on Isakson and Chambliss (and the lack thereof) makes this attempt futile. They may get a slight change in the nominees, but it will further divide the Democratic community, and it will further degrade the decorum and respect that becomes harder to maintain as compromise becomes a pejorative.

So should there be more Black people on the bench? Certainly. A more pressing issue is the dearth of quality members of the judiciary overall. And to the degree that undermining this deal delays the appointment of smart, practical attorneys to the Federal bench, we all suffer from the result.


  1. DavidTC says:

    Frankly, the lack of black people on the bench is a trivial matter compared with the lack of _any_ people on the bench. We really can’t keep operating with such an absurdly understaffed judiciary.

    As for how it should actually work…I’m of the opinion that _complete_ deference to the Senators is a bit of a mistake.

    We’re getting pretty far in the weeds here…it’s the job of the president to appoint the judiciary, and it’s the job of the Senate as a whole to confirm that. And 95% of the time, the Senate should confirm them, and of the 5% they don’t, it usually should be the _majority_ of the Senate that has the problem with the guy, not just literally one person. It is not the job of the President to find dozens of people _no one_ objects to, nor does that even seem possible.

    OTOH, completely ignoring the state’s Senators is a mistake also. Maybe there is indeed some particular local reason to keep that person off the bench.

    A compromise might be to make it a joint veto, where if either of them returns the card, it’s good. Or to make it where they each can keep a maximum number of people off the bench, like two a year. (Remember, this is _in addition_ to the Senate having to confirm them…it’s not like the president could propose crazy people and make Senators waste their veto. Presumably, the Senate itself would just reject those people.)

    Actually, you know what would be a good idea? Just vote in the Senate, but if the state’s Senator objects to them beforehand, raise the threshold to 60% or 75% or whatever. Or have each objection add 15% threshold, and of course both Senators can object, that would work out okay. (Especially considering that _most_ judicial nominees end up getting like 95 votes. So even if a Senator did object, he’d have to _explain_ it and convince at least a few people, or everyone would just vote them in anyway.)

    Or we can do it this way, this custom compromise seems to have worked out okay here. I’m just saying it would be better to have some sort of general compromise policy, instead of switching back and forth between ‘A state’s Senators can veto every one of them’, and ‘A state’s Senators get no say’.

  2. Dave Bearse says:

    Forgive this being a wee bit off-thread….

    The circumstances that led to the recent confirmation rules changes have been awhile in the making. The information below is judicial + executive = total cloture motions from this Congressional Research Center source: http://www.senate.gov/CRSReports/crs-publish.cfm?pid=%270E%2C%2AP%2C%3B%3C%20P%20%20

    The second Congressional term of the Carter Presidency was the first bump in cloture motions. They were a one every couple of years phenomenon during Regan-Bush I before increasing markedly during the Clinton administration. They more than doubled from an average of 3 per year to 7 per year during the Bush II Presidency, and similarly climbed 4 more per year to 11 per year during the first Obama administration.

    My active opposition to a rules change ended after Lindsay Graham twittered: “Where are the #Benghazi survivors? I’m going to block every appointment in the US Senate until they are made available to Congress.” I have reservations about the change, but a dysfunctional process was being further being cheapened by obstructing nominations based on unrelated matters.

    2 + 0 = 2 90th-92nd (1968-1972), 1 ea Johnson & Nixon
    0 + 0 = 0 93rd-95th (1973-1978)
    2 + 2 = 4 96th (1979-1980) Carter
    4 + 2 = 6 97th-100th (1981-1988) Reagan
    1 + 0 = 1 101st-102nd (1989-1992) Bush I
    2 + 10 =12 103rd (1993-1994)
    7 + 4 =11 104th-107th (1995-2002)
    12 +21 =33 108th (2003-2004)
    6 +12 =18 109th (2005-2006)
    1 + 0 = 1 110th (2007-2008)
    5 +16 =21 111th (2009-2010)
    26 + 7 = 33 112th (2011-2012)

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