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Partisanship blamed for holdup of Ga. bench nominees

December 2011

Silas plagued by US senators' disapproval and lukewarm ABA rating

R. Robin McDonald
Daily Report

Partisanship blamed for holdup of Ga. bench nominees

Correction appended: See below for a correction to this story.

Georgia Democrats hoping for confirmation of President Barack Obama's nominees for the federal bench in Atlanta say they're frustrated by the opposition of the state's two U.S. senators to one candidate and their silence on the subject.

Neither Sen. Saxby Chambliss nor Sen. Johnny Isakson, both Republicans, will say why they have withheld their approval of V. Natasha Perdew Silas, a federal public defender for the past 17 years.

The senators have, however, endorsed the president's nomination of U.S. Magistrate Judge Linda T. Walker for a second open judicial post. Walker's name was proposed by the senators' committee of six Georgia lawyers who had advised them on federal judicial nominations during the George W. Bush administration.

But a spokesman for the U.S. Senate Judiciary Committee said that Silas and Walker, who were nominated by the president Jan. 26, will be considered only as a package. Georgia Democrats told the Daily Report they have discovered no way to break the logjam other than to abandon their candidates in favor of those recommended by the Republican senators.

"I think that our senators are being obstructionist by not letting both of these nominees go forward," said David N. Dreyer, an attorney at Chamberlain, Hrdlicka, White, Williams & Aughtry. He chairs the local chapter of the American Constitution Society, a progressive legal group that has sought out and recommended to the White House the names of potential candidates for the federal judiciary nationwide.

The ACS, he said, "is interested in getting fair and impartial people appointed to the bench who have a solid legal background and who have diverse experiences and backgrounds. … Unless the Republicans, and especially our Republican senators, can also come to the table in a more pragmatic and less ideological way, I don't know what's going to happen."

That sense of frustration has been heightened by a lukewarm rating issued Silas by the American Bar Association's Standing Committee on the Federal Judiciary. A "substantial majority" of the 15-member panel rated Silas as "qualified," but a minority rated her as "not qualified." A "substantial majority" of the committee rated Walker as "well qualified." A minority rated her as "qualified," according to the ABA website.

According to the ABA, the committee evaluates judicial candidates on the basis of three factors: integrity (including character, general reputation in the legal community, industry and diligence); professional competence (intellect, judgment, writing and analytical abilities, knowledge of the law, breadth of professional experience); and judicial temperament (compassion, decisiveness, open-mindedness, courtesy, patience, freedom from bias and commitment to equal justice under the law).

There are three possible ratings— "well qualified," "qualified" and "not qualified."According to the ABA, of 107 candidates nominated to the federal judiciary this year, eight—including Silas—have received ratings that included a "not qualified" minority.

The ABA's tepid rating caught Silas' supporters by surprise, some claiming it was politically motivated—an allegation that the ABA committee's acting chairman disputes.

Atlanta attorney Antonio L. Thomas—who was a member of then-U.S. Sen. Sam Nunn's advisory committee on federal judicial nominations—said he suspects Silas may have received a lower ABA rating because she is a public defender and because the ABA committee has become more conservative.

The U.S. Senate Judiciary Committee has received more than 40 letters of support for Silas, including letters from former U.S. attorneys Kent Alexander, Joe D. Whitley, Richard S. Deane and Larry Thompson, who also served as U.S. Deputy Attorney General during the Bush administration.

Erica Chabot, a spokesman for committee chairman Patrick Leahy, D-Vt., said the committee hasn't received any letters in support of Walker.

Silas declined to comment on her nomination or the ABA rating. Walker could not be reached for comment.

Nominees came through different pipelines

Obama nominated Walker and Silas last January. Walker's name had been on a short list of three potential nominees that Chambliss and Isakson recommended to the White House. Silas had been recommended by a committee vetting potential judicial candidates for Georgia's Democratic congressional delegation in 2009. Both Walker and Silas were interviewed by the committee, which placed Silas, but not Walker, on its list of recommended nominees.

Silas earned her undergraduate degree at the Massachusetts Institute of Technology and her law degree at the University of Virginia. She has worked a public defender since 1994.

Walker, a federal magistrate judge since 2000 and a former county attorney for Fulton County, earned her law degree at the University of Georgia School of Law and her undergraduate degree at Southern University in Baton Rouge.

If appointed, the two would become the first African-American women named to federal district judgeships in Georgia. Walker was the first, and remains the only, female African-American federal judge in the state.

The Judiciary Committee's Chabot told the Daily Report on Thursday that Isakson and Chambliss both returned blue slips on Walker last July, the Senate's traditional indication that a nominee has received the approval of his or her home state senator. But neither, she added, has returned blue slips for Silas or sent letters to the committee explaining why they have, so far, refrained from supporting her.

Isakson's press secretary issued a statement to the Daily Report this week saying that while he supports Walker's nomination, "I am not supportive of the nomination of Natasha Perdew Silas." The press secretary didn't respond to questions asking why Isakson withheld his support.

Chambliss' communications director declined to answer any questions about his failure to support Silas, saying the senator doesn't comment "on judge issues."

Stephen B. Bright, a Silas supporter and president and senior counsel of the Southern Center for Human Rights, said if Chambliss and Isakson have shared their reasons for supporting Walker but not Silas, the information remains closely held.

"If they have talked to anybody and given any reason, I'm not aware of it," he said.

Dreyer, too, said that Georgia's senators "have refused to explain" why they approved of the nominee put forth by their vetting committee but withheld approval of the Democratic candidate.

The Northern District of Georgia has been without a full complement of judges since Jan. 1, 2009. The two open posts for which Walker and Silas have been nominated have been designated as judicial emergencies by the Administrative Office of U.S. Courts because they have been vacant so long.

"I think Democrats have shown a repeated willingness to work with Republicans in a pragmatic way to get the court fully staffed," Dreyer said, "and Republicans have kept pushing back on ideological grounds. They are the ones who have made it difficult."

The result, Dreyer said, is an impasse.

Chabot said the judiciary committee's understanding is that the White House considers the Walker and Silas nominations as a package deal. In addition, she said, it has been Leahy's policy as Senate Judiciary Committee chairman not to schedule a hearing for nominees from the same state "until both blue slips are returned from each home state senator."

Atlanta attorney Emmet J. Bondurant, who wrote a letter to the Judiciary Committee on Silas' behalf and one of the lawyers contacted by the ABA, said that he, too, understood "that these two nominations were essentially paired" with Walker as the Republican choice and Silas as the Democratic choice.

Two outcomes

Given that scenario, Atlanta attorney Martin D. Chitwood—a member of the Democratic vetting committee and of the American Constitutional Society's Judicial Nominations Task Force—suggested that there are two things that could happen: "One is that it's tabled until after the [2012] elections," he said. "Two, we could slide two other people in" as nominees."

Chitwood added that replacing Silas and Walker—whose nominations won't expire until Dec. 31, 2012—"is a process that would have several steps. It would be very unlikely." And, he added, "The White House seems satisfied with the two candidates it has proposed."

Georgia's senators haven't been the only ones reluctant to discuss the judicial nominees. Tampa attorney Benjamin H. Hill III, acting chairman of the ABA Standing Committee on the Federal Judiciary—which rates federal judicial candidates and provides them to the White House before nominees are announced and traditionally has operated in secrecy—wouldn't discuss the reasons behind Silas' "minority not qualified" rating, citing the blanket of confidentiality under which the committee operates.

According to the ABA website, the rating is based on a confidential committee vote after confidential interviews done by the committee member representing the nominees' home federal judicial circuit.

A "majority" rating constitutes eight to nine committee members. A "substantial majority" is 10 to 13 committee members.

The 11th Circuit's committee representative is Miami attorney Ramon "Ray" A. Abadin of the firm Abadin Cook. Abadin contacted Atlanta lawyers—who later spoke to the Daily Report—about both Walker and Silas.

Abadin, the former president of the Cuban American Bar Association, chaired Florida's Judicial Nominating Committee for then-Gov. Jeb Bush and is a frequent donor to Republican Party candidates, according to campaign financial disclosure websites. He couldn't be reached for comment.

From 1953 through 2000, the ABA committee, in consultation with the White House, evaluated prospective nominees to the federal bench. Bush discontinued the practice during his administration, but Obama reinstated it.

Previous Obama nominees Amy M. Totenberg and Steve C. Jones, who joined Atlanta's federal bench earlier this year, both received "well qualified" ratings.

Thomas called Silas' lukewarm ABA rating "unbelievable" but "no reason to withdraw … especially when you look at her qualifications." And he suggested that the rating may be indicative of a bias against public defenders "who are deemed not qualified to serve."

Dreyer also expressed surprise. "She has won respect from the U.S. attorney's office," including support from Larry D. Thompson and Joe D. Whitley, both Republican appointees, he said.

"When she has won over people like that with her work, it seems very surprising that the ABA would say she is less qualified than many other candidates," he added.

But Hill, who once served as special counsel to former Fla. Gov. Bob Graham, took issue with any suggestion that the committee ratings might reflect a political bias. "That's not the case," he said. "We work extremely hard to avoid any politics whatsoever. … If there is any committee in the ABA that is totally without bias, it is this committee."

Correction: This version of the story reflects a correction fixing a mistake in the number of possible ABA ratings for judicial candidates. There are three: "well qualified," "qualified" and "not qualified." The ABA committee does not issue "most qualified" ratings.