Mississippi Litigation Review & Commentary : Mississippi Personal Injury Lawyer & Attorney : Phillip W. Thomas Law Firm : MS Litigation Review & Commentary

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The Clarion-Ledger is reporting that President Obama nominated Jackson attorney Greg Davis to become U.S. Attorney for the Southern District of Mississippi:

President Barack Obama has nominated a Jackson lawyer as the next U.S. attorney for the Southern District of Mississippi.

Gregory Davis is a member of the law firm Davis, Goss & Williams PLLC, which he co-founded.

Davis graduated from Mississippi State University in 1984 and Tulane University School of Law in 1987.

If confirmed by the U.S. Senate, Davis will succeed Dunn Lampton, who retired. First Assistant U.S. Attorney John Dowdy Jr. has been the office's interim leader since January. 

President Obama [a.k.a. The Tortoise] nominated Davis nearly a full year after his name first surfaced as a candidate for the position.

My Take:

Finally, one of my own people gets nominated to an important federal position. That's right. Davis is……..a golfer.

When Davis walks into the federal courthouse, the U.S. Marshals will say: “now there goes a man who knows the humiliation, degradation, frustration, anger, and total injustice of…..slicing a ball into the drink on 18 with the match on the line.” 

Davis is a shining beacon for golfers everywhere that there is hope for overcoming that devilish past time.  

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With the U.S. Senate approving Justice James Graves' appointment to the 5^th Circuit Court of Appeals on Monday, attention turns to who Governor Barbour will appoint to replace Graves on the Miss. Supreme Court. I posted on this issue in this post last June. I've had lines in the water for weeks on this issue and do not really have any fresh information on this topic.  

Speculation in Jackson legal circles continues to center on Barbour appointing Graves' replacement from the Mississippi Court of Appeals. Under this theory Barbour will appoint Court of Appeals Chief Judge Leslie King to the Supreme Court, a sitting trial judge to the Court of Appeals and an attorney to replace the trial judge. Hinds County Chancery Judge Denise Owens is a name that I hear as the favorite to replace King on the Court of Appeals if it this happens. Others speculate that Owens could replace Graves on the Supreme Court.

I've gotten mixed signals on the possibility of Jackson attorney La'Verne Edney getting the Supreme Court appointment. I've heard that she does not want the position. And I've heard that she is campaigning for the job. So I've got no idea.

One interesting scenario would be for Barbour to appoint former Hinds County Circuit Judge Malcolm Harrison to one of the available positions. Word on the street is that Barbour was upset with Judge Bill Gowan for running against—and unseating Harrison. Appointing Harrison to another slot would at least put Harrison back into public service.

With Barbour still in the 2012 Presidential race, expect the position to go to an African-American. If Barbour appoints a white person to the Supreme Court, then he's not running for President.

At this point, I have no prediction on what's going to happen here. Let me know if you've heard any interesting rumors on the Supreme Court seat. If requested, I do not reveal the identity of sources. 

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Justice James Graves' Senate Judiciary Committee Re-vote will be Thursday January 27, 2011 at 10:00 a.m. That is 9:00 a.m. Jackson time. Here is the agenda. You can also link to a live webcast of the hearing at the same link. But I doubt that it will be very exciting.

The re-vote is necessary because judicial nominations expired with the end of the 2010 Congress. President Obama re-nominated Justice Graves to the 5th Circuit earlier this month. Graves is expected to pass through the committee and the full Senate with no problem.

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Today's headlines suggesting that Justice James Graves' nomination to the 5^th  Circuit Court of Appeals is dead are misleading. Judicial nominations not yet approved by the full Senate die as a matter of course when the Senate adjourns for the year. That does not mean that Graves will not be confirmed.

The key statement in the article is this:

Rick Curtsinger, spokesman for U.S. Sen. Roger Wicker, R-Miss., said President Barack Obama can resubmit Graves' name when a new Congress convenes in January.

This was not unexpected. Carlton Reeves barely got confirmed before the Senate adjourned and his nomination was months ahead of the Graves nomination. Barring something unexpected happening President Obama will re-nominate Graves and he will get confirmed by the full Senate in the first half of 2010.

Meanwhile, I'm hearing that Carlton Reeves will take the oath by the end of next week with a formal investiture later in the year.

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Nearly two years since I first blogged about Mississippi U.S. Attorney appointments, Ya'll Politics links this Patsy Brumfield blog article about renewed speculation that President Obama may be about to appoint state Sen. Gray Tollison as the Northern District U.S. Attorney. Tollison's name first surfaced as a possibility in July.

Ms. Brumfield sounds tired of the speculation:

So, I wont' say it's a sure thing.

But I'm told from a very reliable source, with Washington perspectives, that state Sen. Gray Tollison of Oxford will be The Guy. Tollison is mum on the subject.

Of course, that comes after months and months of on/off/confused, and yea even no reports that it was Oxford attorney Christi R. McCoy or Felicia Adams, who's an assistant U.S. attorney in Jackson.

But maybe this time, it's right. We'll see.

My reaction is the same as I perceive Brumfield's to be: fatigue.

It reminds me of the scene from the movie Invincible where Mark Wahlberg tells the Eagles manager that they have his name spelled wrong on his locker. The manager's unenthusiastic response is that he is sorry, but does it really matter?

That's how I'm going to feel if and when Obama ever gets around to appointing U.S. Attorneys in Mississippi. It will be very anti-climatic because it is something that he should have done a long time ago and has totally botched.   

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The Senate Judiciary Committee did not act on any pending judicial nominations today. This included the 5th Circuit nomination for Justice James Graves. Here is the link.

The Point of Law blog noted in a post today that conservatives are trying to stall on all nominations for the entire lame duck session. 

President Obama may be about to learn why he should have pushed these nominations through a year ago.

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In July I mentioned in a post that Jackson attorney Greg Davis is under consideration for appointment as the U.S. Attorney for the Southern District of Mississippi. That is still the case.

I am hearing that DOJ is conducting a standard background investigation of Davis. The investigation includes calling lawyers around town and asking them what they think of Davis. Lawyers have been taking these phone calls in the last few weeks. This probably means that Davis in the current favorite to be named U.S. Attorney for the Southern District.

President Obama and the Justice Department have been asleep at the wheel on the Mississippi U.S. Attorney positions for the entire 2–year Obama administration. A review of the Main Justice Web Site's U.S. Attorney chart shows that the vast majority of positions around the county have been filled. The current rumblings surrounding Davis is no strong indication that Obama is waking up on this.

Assistant U.S. Attorney Felicia Adams is thought to still be the leading candidate in the Northern District, despite more recent rumors focusing on Senator Gray Tollison.

Frankly, Obama has taken so long to fill these positions that interest on the subject seems to have waned. Obama will be in a dog fight to keep his job two years from now, so any appointments at this late date may be short term. Filling judicial and U.S. Attorney positions is an area where the Obama administration has underachieved and disappointed its supporters.

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This Politico article from last week discusses the Republican political strategy of delaying votes on all President Obama's federal judiciary nominations.

The linked article includes this picture of Sessions:

 

Is it just me, or does Sessions look like an elderly Mickey Mouse? Seriously. 

Anyway, the article mentions Democrats whining about the delays and goes on to state:

Both sides acknowledge that Obama has been relatively slow to nominate judges for the more than 100 vacancies in federal courts. Democrats said it is partially a result of the amount of resources it requires to find and vet qualified nominees. The GOP, however, said the White House’s slow pace accounts for his low confirmation rate compared with Bush’s; so far, Obama has nominated 85 judges compared with 127 nominations Bush had made at a similar point in his presidency.

The Republican delay isn't surprising at all. This is why I was bitching about Obama's slow pace at making nominations months ago. Why couldn't Obama see this coming? Many of us did—despite not having Ivy League degrees.

Democrats seem to always be behind the Republicans in politics. I could see Democrats advocating a cavalry charge against German tanks in WW II. 

Caught up in the delay are Carlton Reeves (nominated for U.S. Dist. Court) and Justice James Graves (nominated for 5^th  Circuit Court of Appeals). The fact that Reeves and Graves are not controversial and have the support of Mississippi Republicans does not matter. The Republicans have political gamesmanship to play.

Reeves and Graves will be confirmed by the full Senate once they get their votes. But I have no idea when that will be. It doesn't look like it will be anytime soon.  

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Will Bardwell attended Justice Graves' Senate confirmation hearing on Wednesday and wrote this account for the Northeast Mississippi Daily Journal. The hearing opened with softballs from Senator Al Franken. Franken reminded Graves that “you're good enough, you're smart enough, and dog-gone it, people like you.”

Then it was time for the Republican attack. Except the Republicans implemented a French battle plan and questioned Graves about something they couldn't beat him on: the death penalty. Bardwell reports:

Each time, Graves parried by assuring Sessions that, as a member of a lower court, he would bind himself to the decisions of the U.S. Supreme Court. As evidence of that deference, Graves told the stridently pro-death penalty senator that he had voted to affirm capital sentences in no fewer than a dozen cases.

But fears raised earlier in the week about a real attack on Graves proved unfounded.

After writing this post about Eugene Volokh's blog raising questions about Justice Graves, I received an email from Mr. Volokh that explained how he knew about the Mississippi Supreme Court decisions that he wrote about. The email explained:

Dear Mr. Thomas:  I read with interest your post that mentioned my post about Justice Graves, but wanted to make one small factual point – though I do often learn about stories because readers send me links, in this case (as I recall) I learned about the Wilkerson and Osborne opinions myself, when they were decided.  The Wilkerson case was reported in Westlaw Bulletin, and I have a daily WestClip query on that; the Osborne case, I think, likely came up in a daily WestClip query I have for new First Amendment cases.  My main scholarly field is First Amendment law, so I track free speech cases closely.

 

Whoops, forgot to make explicit one thing:  I am certain that no-one contacted me about the cases after, or even not long before, the Graves nomination; rather, it was the Graves nomination that reminded me about the cases that I had read earlier.

Volokh's explanation makes sense, particularly given this sentence that was in the first paragraph of his post:

And while I know only one small corner of Justice Graves’ work, I hope the Committee asks him a question about this corner.

By the way, I apologized to Volokh for misreading the tea leaves and he was very gracious. His blog has a national following that will include me in the future.

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Blogs were burning up on Friday over this blog post by a California law professor (Eugene Volokh) that suggested that 5^th Circuit nominee and current Miss. S. Ct. Justice James Graves (who is African-American) is racist. Volokh's blog has a national following.

In support of the theory, Volokh contrasted Graves' voting record on several appeals In which Graves did not explain the reason for his votes. Volokh states:

Unfortunately, Justice Graves did not offer any explanation for his different conclusions about the hostile-to-gays speech and the hostile-to-whites speech. Nor did her offer any explanation for the different approaches that the opinions he joined used in those cases.

Will Bardwell believes that the attack is part of a Republican attack on Graves, whose Senate confirmation hearing is on Wednesday.

Bardwell may be right, but it's an odd attack. Following Graves' nomination to the 5^th  Circuit, Gov. Haley Barbour, and Senators Thad Cochran and Roger Wicker all endorsed Graves' nomination. All three are Republicans who have little or nothing to gain from supporting Graves.

I do not believe that Graves is racist

Graves is a black judge who was elected to the Miss. S. Ct. in a majority white district in a race against a white candidate who many people thought played the race card. He did it by convincing many white Republicans to vote for him. That's already impressive. It would be amazing if Graves pulled that off while secretly hating white people.

I can't recall hearing any lawyer who appeared in front of Graves theorize that he is a racist. I can't say that about every African-American judge in Mississippi. When Graves was a Circuit Court judge, the lawyers who had to fear him were those making bad arguments.  

Volokh's article quotes no one from Mississippi and there is nothing in the article to suggest that someone from Mississippi told him that Graves may be racist. Of course, someone fed the story to Volokh.

Appellate Judges Should Explain their Votes

While I have not heard Justice Graves criticized as a racist, I have heard criticism about his frequent dissents without written opinions. I've also heard that it could become an issue in his confirmation process. It appears that it has, though not in a way that anyone I know foresaw.   

The “I told you so” award goes to Tom Freeland, who has long complained about unexplained dissents. Here is Freeland's reaction the Volokh's article, which concludes:

There is a direct virtue to a judge’s explaining their vote beyond telling the public and the parties:  Expressing aloud what one thinks is a great way of testing whether one is right.  I really see the problem here as voting-without-explaining, a problem that is not limited to Justice Graves on that court, and that started before he ever arrived there.

And if judges fail to explain the reason for their vote, it leaves an opening for someone to explain it for them. While I believe that Volokh is wrong, Graves opened himself up to the criticism by not explaining his votes.

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Jackson lawyer Carlton Reeves' nomination to be a U.S. District Judge cleared the Senate Judiciary Committee on Thursday. Here is the Clarion-Ledger article on the story. The next step for Reeves is a full Senate vote.

Logic suggests that the Senate vote should take place in the next few weeks. But we're talking Washington politics, so throw logic out the window. Educated estimates are that Reeves' Senate vote will likely be in October or November. But once the Senate approves the nomination—which is very likely—Reeves should be sworn in as a judge in a matter of a few days. Just in time for the new federal courthouse in Jackson, which is scheduled to open later this year.

Word on the street about the nomination of Mississippi Supreme Court Justice James Graves is that his nomination to the 5th Circuit Court of Appeals will drag along, possibly into next year. Estimates are that Justice Graves will not get his Senate Judiciary hearing until sometime in the Fall, possibly after the November elections. That would likely mean a Senate vote in early 2011. Thank Republicans for the delay, but blame the Obama administration for waiting so long to appoint Graves.

There is also a possible doomsday scenario for Graves' nomination. If the Republicans regain control of the Senate in the November elections, they could halt a vote on all Obama appointees until after the 2012 presidential election. That could doom Graves' appointment, despite public support from Mississippi Republicans. While this scenario is unlikely, I am hearing that it is possible.   

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Mississippi Republican Senators Thad Cochran and Roger Wicker endorsed Jackson attorney Carlton Reeves at Reeves' Senate Judiciary confirmation hearing on Thursday in Washington. President Obama nominated Reeves to be a U.S. District Court Judge for the Southern District of Mississippi. The position is a lifetime appointment.

A webcast of the hearing can be viewed here. Honestly, it's about like watching paint dry and lacked the grand standing by Senators seen in Supreme Court nominee hearings.

The hearing agenda included four other nominees to the federal bench. I did not watch the entire hearing. By my count there were two Senate Judiciary Committee members at the hearing. Questioning of nominees started at about minute 77 on the webcast.

Senator Kyl of Arizona questioned Reeves about a letter that he wrote in 2007 opposing the nomination of Judge Leslie Southwick to the Fifth Circuit. Reeves handled the questioning well, pointing out that he wrote the letter on behalf of the Magnolia Bar Association. He also pointed out that as of 2007, the Fifth Circuit had only had two African-American judges in its history. In all fairness, Senator Kyl was very polite during the questioning. 

In my opinion, the endorsements by Senators Cochran and Wicker guarantee that Reeves will be confirmed in a landslide vote. The Senate vote is not expected to take place for another several months.

Despite pre-hearing speculation, Reeves did not wear his Mississippi Litigation Review and Commentary baseball cap during the hearing.

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On Monday the Senate Committee on the Judiciary scheduled Jackson attorney Carlton Reeves' confirmation hearing for Thursday of this week. In April President Obama nominated Reeves to be a United States District Judge for the Southern District of Mississippi. The hearing will be at 3:00 central time in Room 226 of the Senate Dirksen Office Building in Washington.

The hearing is open to the public and can be viewed on the internet at this link: http://www.judiciary.senate.gov/hearings/hearing.cfm?id=4687.

Typically, the confirmation hearings for district court nominees are a mere formality. The hearing should not be confused with a full Senate vote, which probably will not take place for at least a couple of months. This is not unusual and in all likelihood, the Senate will approve Reeves' nomination by a wide margin. 

Once the Senate approves Reeves' nomination, he will probably be sworn in as a judge within a matter of a few days. Reeves' formal investiture ceremony will likely be scheduled for a few months after he actually takes the oath and begins serving as a judge. My guess is that Reeves' investiture will be sometime after the new federal courthouse in Jackson opens this Fall. 

For earlier posts on Reeves' nomination see here  and here.

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USA Today has this new article on the slow going that President Obama is having in getting federal judicial appointments approved by the Senate. The article is fairly typical of similar articles focusing on the confirmation delay during the past year or so.

 The article notes that the President is appointing record numbers of non-white males:

So far he is setting records for the number of women and minorities nominated to lifetime appointments. Nearly half of the 73 candidates he has tapped for the bench have been women. In all, 25% have been African Americans, 10% Hispanics and 11% Asian Americans.

But delay is the name of the game for Republicans:

During his first 18 months in office, his administration has been thwarted by unprecedented delays. The situation, which has received little notice against the backdrop of a pending Supreme Court nomination and the administration's complex legislative agenda, could undercut Obama's effort to significantly infuse the federal courts with more women and minorities.

The article recognizes that the Obama administration is not blameless:

With few exceptions, Senate Democrats have yet to try to force Republicans' hand. The Obama White House has been distracted by other issues — even on the judicial front, where the administration has had two high-court nominations.

Unfortunately, the article misses the point that a huge delay is the one by the President in making his appointments. It took President Obama a year and a half to nominate Carlton Reeves to the U.S. District Court despite the fact that everyone knew that Reeves would probably get the nomination after Obama won the 2008 election.

It took only eight months or so for the President to nominate Justice James Graves to the 5^th  Circuit. But again, that was too long of a delay given the fact that Graves was the front-runner from the day that Judge Barksdale took senior status. The delays in making the nominations of Reeves and Graves are 100% the fault of the Obama administration.

Sure now that the nominations have been made Republicans can be faulted for going into the 4–corners. But is that surprising? That's how Republicans play politics and Republican Senate leaders argue that it came from the Democratic play book:

I don't say all of this to say there is going to be payback," Sessions said after Leahy earlier criticized GOP stall tactics. "I am saying this to set the record straight because I will not stand silent and have what is happening today be compared with the incredibly obstructive actions the Democrats took in early 2000."

Football fans aren't surprised and don't cry when the team ahead starts taking a knee in the last two minutes of the game. Likewise, Democrats should stop crying over spilled milk and should be more proactive in making nominations in a timely fashion and pushing harder to get votes in the Senate.

Earlier posts on President Obama's judicial appointments.

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On Thursday President Obama finally nominated Mississippi Supreme Court Justice James Graves to serve on the Fifth Circuit Court of Appeals. Here is the Clarion-Ledger's article. Here is Graves' bio on the Supreme Court's web site.

Graves has been the front runner since Judge Barksdale took senior status in the Fall. My prior posts on the vacancy are here, here, and here.

Justice Graves is very deserving and will do a fine job on the Fifth Circuit. He was a great Circuit Court judge who earned the respect of lawyers on the plaintiff and defense side. Watching hearings before Judge Graves was entertaining. He told many lawyers that they were winning based on their brief—but were losing the lead in oral argument. It was always interesting to see who had the sense to sit down and shut up. He had little tolerance for bad cases and unprepared attorneys.

Graves was also extremely effective and under rated in getting cases settled. He could scare both sides into settling. Judge Charles Pickering was the only judge that I have encountered who was as effective at pressuring the parties into settlement.

Some may disagree, but I view Justice Graves as a moderate in civil cases on the Mississippi Supreme Court. Sometimes he votes for the plaintiff, sometimes for the defense. I expect that to continue on the Fifth Circuit.

On Monday I will look to how Justice Graves' appointment may impact the dynamics on the Mississippi Supreme Court and speculate on possible appointments for the seat by Governor Barbour.

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In nominating Solicitor General Elena Kagan to the Supreme Court this week, President Obama made a safe choice. Kagan has almost no paper trail because she has never been a judge. There is little evidence to suggest that Kagan is liberal and little about her that can be subjected to legitimate criticism. Attacks from the right will be motivated by the fact that she is an Obama nominee and little else. Barring an Anita Hill type bombshell, Kagan will be confirmed as only the fourth woman to serve on the Court.

Obama also made a safe choice in appointing Justice Sonia Sotomayor last year. Although Sotomayor was a judge who leaned to the left, she was a Hispanic woman. Republicans could not ruthlessly attack her for fear of alienating Hispanic voters.

Two Supreme Court Appointments. Two safe picks. Maybe that helps explain the delays in filling Mississippi vacancies on the 5^th Circuit Court of Appeals, District Courts and U.S. Attorneys.

It takes time to make sure that picks are safe. A lot of digging into their background must be done. And if a candidate turns out to be unsafe, then its back to the drawing board. My personal opinion is that Obama is being overly cautious. Otherwise, his administration is inept in filling vacancies.    

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There is a lot of attention today on Carlton Reeves’ nomination to be a U.S. Dist. Judge in Mississippi. Here are some:

• Clarion-Ledger article (a good article with quotes from Reeves, Rep. Bennie Thompson and Reeves’ law partner Cliff Johnson)
• Main Justice
• Ipse Blogit
• NMC
• Will Bardwell
• Y’all Politics
• Minority Defense Litigator

The nomination is getting widespread praise in these outlets and among members of the Mississippi Bar.

Meanwhile, on North Congress Street speculation now turns to whether Senate confirmation will force the frugal Reeves to upgrade his vehicle, which he has been driving since the 90’s.  [Note to soon-to-be Judge Reeves: your ride is awesome. You’re the greatest, (insert your own compliment here)].

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It took a year and a half, but President Obama finally nominated Jackson attorney Carlton Reeves to be a U.S. District Judge for the Southern District of Mississippi. The nomination has been expected from the day that Obama won the 2008 presidential election.

Here is Reeves’ profile at his firm’s web site.

Reeves is a Yazoo City native and is a graduate of Jackson State and the University of Virginia School of Law. He clerked on the Mississippi Supreme Court for Judge Rueben Anderson, was the Chief of the Civil Division of the Southern District U.S. Attorney’s Office and has been in private practice with Phelps Dunbar and his current firm of Pigott Reeves Johnson.

Here are my prior posts on Reeves.

Reeves is very popular in the Jackson Bar and the expectation among lawyers is that he will be a fair and popular judge. Reeves will join Bush appointees Judge Dan Jordan and Judge Sul Ozerden as young Southern District judges who will likely be on the bench for thirty or more years.

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Main Justice has this story reporting that Southern District Assistant U.S. Attorney Felicia Adams is being considered for the U.S. Attorney in the Northern District. Adams was once thought to be a candidate for the open Fifth Circuit judgeship, but it’s now pretty clear that Justice James Graves will be appointed to the Fifth Circuit unless unexpected opposition emerges. Graves is deep into the vetting process with his name already having been passed on to the A.B.A.

It appears that Adams being in the running for the Fifth Circuit helped her with the U.S. Attorney post, since she was not previously known to be a candidate for the position. Adams is not well known in the Jackson legal community, but is well thought of by those who do know her.

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It has been five months since 5^th Circuit Judge Rhesa Barksdale announced that he was taking senior status, giving President Obama a slot to fill on the 5^th Circuit Court of Appeals. After initial speculation that the position would be filled by someone from Texas or Louisiana, word leaked that the President would fill the position with an African-American Mississippian.

Mississippi Supreme Court Justice James Graves immediately emerged as the favorite for the nomination, as discussed in this post. Other names mentioned for the nomination at one time or another in legal circles include:  

1. Hinds County Circuit Court Judge Winston Kidd,
2. Hinds County Chancery Court Judge Denise Owens,
3. former Hinds County Circuit Court Judge Robert Gibbs,
4. Jackson attorney Doug Minor,
5. Assistant U.S. Attorney Felicia Adams,  
6. Circuit Court Judge Margaret Carey-McRae,
7. Jackson attorney Walter Johnson, and
8. Jackson attorney and presumptive District Court nominee Carlton Reeves.

I believe that the White House has interviewed at least several people on this list.

Speculation continues to center on Justice Graves as the front-runner for the nomination. He is the only person on  the list with appellate court experience, in addition to previously serving as a trial judge in Hinds County Circuit Court. Justice Graves is rumored to have the support of individual(s) with close ties to the White House Counsel’s Office.

Although Justice Graves may not have universal support in conservative circles, he is rumored to have the tacit approval of Governor Haley Barbour, who would like to appoint an African-American to the Mississippi Supreme Court to strengthen his 2012 presidential bid. Governor Barbour is effectively running for President now, which should be kept in mind when viewing his political moves.

One thing the Governor needs to do before the official campaign starts is to repair his glaring deficiency in appointing minorities to judge positions, as discussed here and here. Since criticism of Barbour ‘s minority appointment record became public last year he quietly appointed several African-American judges, including appointing Macolm Harrison to fill the seat of Bobby DeLaughter. If Justice Graves is confirmed for the 5^th Circuit, Governor Barbour will get to name his replacement on the Mississippi Supreme Court. Appointing an African-American to the Supreme Court would go a long way to blunt the criticism of Barbour’s record on minority appointments.

One thing that appears certain is that the White House better get moving if it intends to fill Judge Barksdale’s seat. There is less than two years until the Iowa caucuses. But the 2012 presidential race will kick off a year before that—meaning that we are less than a year from formal announcements from Republican presidential candidates. Doesn’t that sound like fun? Presidential election campaigning less than a year away?

Once the presidential election cycle begins confirmation of judicial nominees in the Senate takes a back-seat to campaigning and political gamesmanship. At some point, the Republicans will stall votes on all nominees in hopes of regaining the White House. Look for that point to be at least a year before the election in 2012. 

This means that the clock is ticking for President Obama to fill federal court vacancies. And with Supreme Court Justices Stephens and Ginsberg expected to step down this year or next year at the latest, the White House will focus on filling those vacancies. 

President Obama needs to nominate someone for the 5^th Circuit soon and press for a Senate vote this year. Failure to do so could result in a lost opportunity to add diversity to the Court and would be a black-eye for the Obama administration. It has been known for close to a year that Judge Barksdale would be taking senior status and he made his formal announcement in September. It's inexcusable that it has taken the White House this long to name a replacement--and we're still waiting.

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Main Justice is reporting today that Sen. Richard Shelby of Alabama withdrew most of his holds on presidential nominees late last night:

Shelby’s office announced late last night that the senator would drop his “blanket hold” on more than 70 nominees pending on the Senate Executive Calendar. A hold is when a senator — often anonymously — lets it be known he would oppose a unanimous consent request to bring a particular bill or nomination to the Senate floor.

Main Justice confirms that the reason for Shelby’s holds was pork projects:

The Alabama senator had held up the more than 70 nominees since Thursday over concerns he has about a tanker contract that could bring 1,500 jobs to Mobile, Ala., and over funds he is requesting to build an FBI counterterrorism center in his state. Northrop Grumman is vying to win the tanker contract, and if successful, would assemble the planes in Mobile.

Shelby's tactics remind me of something other than pork that is found in barnyards.

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According to this Washington Post article, Sen. Richard Shelby of Alabama is blocking all presidential nominees from Senate votes in an attempt to secure federal funding for two pork projects for Alabama. The block apparently applies to everything from Court of Appeals judges to more mundane positions within federal departments. According to the article:

Shelby is seeking funds for the KC-135 Air Force tanker fleet, a project that could generate thousands of jobs in Alabama. He is also demanding that the administration restore funding cut from the budget for the FBI's Terrorist Explosive Device Analytical Center, a facility to test defenses against the improvised bombs used in Iraq and Afghanistan.

Shelby placed the hold because of "unaddressed national security concerns," according to a statement released by his office. He "has made the administration aware of these concerns and is willing to discuss them at any time." The statement said Shelby was holding up "several" nominees, but the White House and Reid's office placed the number at more than 70.

Shelby’s tactic is an example of the partisanship that it significantly damaging our county. This type of partisanship is the reason that many Americans have such a negative opinion about Congress. Perhaps the most frustrating aspect of the partisanship is that it continues despite the American people disliking it.

Republicans have made it clear that they are not going to work with the President under any circumstances. In doing so, Republicans are putting partisan politics over the American people. Republicans no doubt believe that this strategy will return the party to power in Washington (if they ever lost it). It will be sickening if they are right, since it will encourage more of the same in the future. 

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As Jeffrey Toobin asks where the judges are, this Houston Chronicle article from last week confirms that President Obama is dragging his feet at filling judicial vacancies and nominating U.S. Attorneys.

The stats tell the story. By this point in their administrations Presidents Clinton and W. Bush had nominated 75 and 66 U.S. Attorneys respectively. Obama has nominated only 42.Of the 42 that have been nominated, 31 have been confirmed.

The article notes that the failure to fill the slots has negative consequences:

“There's no real boss. It means what will be done is the routine. You need a guy who can move the team, and he has to be on the president's team,”

In Mississippi there have been no rumblings of political fights with respect to the vacant U.S. Attorney positions or the vacant U.S. District Court position and 5^th Circuit Court of Appeals position. Blaming Republicans for the slow pace at filling slots rings hallow when the administrations is going so slowly at making nominations and 75% of those nominated have been confirmed.

Like Mississippi, Texas has all its U.S. Attorney slots still open. The Chronicle article suggests that political fighting is the cause:

A classic political stalemate pitting Texas' Democratic congressional delegation and Obama's administration against Texas' pair of Republican senators is partly to blame for the slowed process here. Similar fights in other states, as well as an especially cautious presidential nominating process, have left most of the nation without freshly appointed lead federal prosecutors, who direct law enforcement priorities and approve work on the big projects.

People understand that the administration has been busy with the health care bill, the wars, the terrorist attack, etc.. But the White House has to be able to multi-task and get things done. If President Obama continues to delay in making nominations, then there will be a growing risk that Republicans can stall long enough to prevent Obama from filling all the vacancies that he inherited or came open in his first year. To Democrats, that would be unconscionable.

Adding to the frustration level for Democrats is that the President could fix the problem on his end in a matter of weeks. He could set a meeting date a few weeks out when Obama and his advisors would review the candidates for each vacancy and the President would make a decision. If the President does not have people working for him who can meet such a deadline, particularly after this long already, then he needs a better staff.

Democrats are frustrated. Republicans are giggling behind the President’s back and the President is starting to look like the Cowardly Lion and a possible one term president. That all needs to change in a hurry. 

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In this October post, I discussed the vacant 5^th Circuit Court of Appeals slot and mentioned Justice James Graves as a candidate to fill the position. Since then, President Obama’s administration has moved at its typical slow pace in filling the position. With the President’s White House Counsel leaving the administration at the end of the year, it appears unlikely that the announcement of a nominee is imminent.

It’s my understanding that Justice Graves remains on a growing list of candidates. Other names mentioned as candidates, in no particular order, include:

1. Hinds County Circuit Court Judge Winston Kidd,
2. Hinds County Chancery Court Judge Denise Owens,
3. former Hinds County Circuit Court Judge Robert Gibbs,
4. Jackson attorney Doug Minor,
5. Assistant U.S. Attorney Felicia Adams, and 
6. Circuit Court Judge Margaret Carey-McRae.

It sounds like Judge Winston Kidd is Congressman Bennie Thompson’s candidate. But each of the other candidates have their own supporters in political circles or the bar. I have not heard of Congressmen Gene Taylor or Travis Childers supporting a candidate. Taylor is known to stay out of appointment debates. Childers is rumored to have focused on pushing for Oxford attorney Christi McCoy to be named U.S. Attorney for the Northern District. But McCoy is unlikely to get the nod.

It is believed that some of the 5^th Circuit candidates have been interviewed over the phone by the White House.  

A huge question is when will the White House make an announcement. To see how long this could go on, look at the vacant U.S. District Court seat that has long been presumed to be going to Jackson attorney Carlton Reeves. The seat has been vacant for years and Reeves has been the only known candidate since Obama’s election more than a year ago. But the White House has yet to make an announcement and appears to be in no hurry to make an appointment.

If the White House follows a similar pace with the 5^th Circuit nominee, we will be still be talking about this vacancy this Summer, and perhaps later.

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Last Monday I reported that Keith Ball has been selected as the new Magistrate Judge for the Southern District. I had heard the news the previous Friday from someone who was not on the Magistrate Selection Panel.

Then last Wednesday I heard that one of the Southern District Judges was telling lawyers that no announcement had been made on the selection yet. 

But the Clarion-Ledger reported this morning that Judge Wingate confirmed that Keith Ball is the choice:

 U.S. District Judge Henry Wingate, chief judge for the Southern District, on Monday confirmed Ball's selection.

On another note, I saw a comment on another blog that Judge Winston Kidd's name has been submitted for the vacant 5th Circuit Court of Appeals seat. I'm not sure what the person meant by "submitted", but I do not believe it to be true unless he meant that Judge Kidd was one of many potential candidates submitted to the White House for consideration. 

It's my understanding that the White House is still in the vetting process and has not decided on a nominee.  The slow pace of President Obama filling judicial vacancies continues to receive national attention. The White House attorneys in charge of the selection and vetting process are leaving their posts soon, which threatens to further slow the process.

Every so often I am asked my opinion of what it might mean that there has been no announcement for the vacant Southern District Court or 5th Circuit positions. I do not believe that much should be read into it. The White House is just slow in this area. I would not read anything else into it until most of the other open slots around the country are filled with ours still open.

There could be announcements soon, or not for a long time. I don't think anyone really knows which it will be.

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It's only been a week and a half since my last post on the glacial pace of President Obama's judicial and U.S. Attorney appointments, but coverage is growing in the national media.

The process reminds me of the photo to the right.

On Monday I saw this Slate article tilted "The Bench in Purgatory." The Slate article blames Senate Republicans for the delays:

It seems clear that Senate Republicans are prepared to take the partisan war over the courts into uncharted territory—delaying up-or-down votes on the Senate floor for even the most qualified and uncontroversial of the president's judicial nominees.

The emerging Republican strategy is to hold these uncontroversial nominees hostage as pawns in the larger war over President Obama's agenda and the direction of the federal judiciary. The Senate operates according to a set of arcane rules that allows a minority party to bring the institution to a halt if it chooses to do so.

This afternoon the WSJ Law Blog had this article titled: "Blame Game: On Obama's Judicial and U.S. Attorney Nominees." The article cites the Slate article and comments:

But for now, what we can say from our own little corner of the world is that the process for replacing vacancies on the federal bench and among federal prosecutors hasn’t exactly been a quick one.

Last week I said this about the President's appointments and Republicans:

If the President thinks that Senate Republicans will give his nominations a pass because he appoints people his administration perceives as moderates, then he is kidding himself. Republicans play politics for keeps and are going to oppose the President's nominees for political reasons, regardless of who they are. 

It is going to take a long time for Obama to get his appointees through the Senate. The quicker the process starts the better.

My personal opinion is that if Senate Republicans are sandbagging votes on Obama's nominations, then it is a political mistake and symptomatic of a party that has lost its moorings. But regardless of that, I don't see how the White House can blame Republicans for the fact that the Obama is not making appointments. It's not the Republicans' fault that Obama has not nominated 57 of 90 U.S. Attorney slots or most of the 90-plus vacancies on the federal bench.  The fact that the Republicans are playing hard ball should make it easier to decide on nominees--not harder. If the Republicans are going to oppose everyone, then why spend time looking for someone who Republicans might agree to? To borrow a football analogy, it's time for the White House to make some half-time adjustments. They need to forget about the Republicans and make the nominations for these positions.

If the anniversary of Obama's inauguration arrives and there are still massive vacancies, look for Republicans to use it as evidence of the President's ineptness. It's time for the President to head the Republicans off at the pass and name appointees/ nominees for all vacant judicial and U.S. Attorney positions. Once that is done, then the President and Democrats can blame confirmation delays on Republicans.    

Finally, last night Mississippi blogger Will Bardwell had this post citing statistics that President Bush was slower filling appointments than Obama. Is that what we're already down to with Obama? Comparing his presidency to perhaps the worst president EVER?  I was hoping for a presidency that compared favorably with administrations that were significantly better than Bush's. 

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Today's Washington Post has this article about President Obama's tortoise-like pace for making appointments to the federal bench. Key points include:

During his first nine months in office, Obama has won confirmation in the Democratic-controlled Senate for just three of his 23 nominations for federal judgeships, largely because Republicans have used anonymous holds and filibuster threats to slow the proceedings to a crawl.

Some Republicans contend that the White House has hurt itself by its slow pace in sending over nominations for Senate consideration. President George W. Bush sent 95 names to the Senate in the same period that Obama has forwarded 23.

The White House predicts that nominations and confirmations will pick up soon.

But liberal activists argue that Obama needs to quicken the pace, partly for political reasons. "It is incumbent on the Democrats and the White House to push as hard as they can to confirm judicial nominees, given that next year Republicans will make an all-out effort to block candidates as a means to gin up their base before the election," said Nan Aron, president of the Alliance for Justice, an advocacy organization.

I agree that the President is moving too slowly. I'm not seeing any caution. Even if there is caution, it is misplaced. If the President thinks that Senate Republicans will give his nominations a pass because he appoints people his administration perceives as moderates, then he is kidding himself. Republicans play politics for keeps and are going to oppose the President's nominees for political reasons, regardless of who they are. 

It is going to take a long time for Obama to get his appointees through the Senate. The quicker the process starts the better. Nine months have already been wasted. Obama does not have three more years to get his appointments through. He has about two, since Senate Republicans will go into the four-corners during the election year in hopes of winning the election and gaining the appointments.

 I read somewhere that President Bush took little interest in his judicial appointments. That makes it even more galling that his administration was more efficient at making appointments than Obama's. The President taught Constitutional law. You would have thought that he would make naming his appointments and getting them confirmed a priority.  

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There is a rare opening on the 5th Circuit Court of Appeals with Judge Rhesa Barksdale taking senior status. President Obama will appoint someone to fill the seat. For a while it sounded like the appointment would go to someone from Louisiana. Later, I heard that Texas, Mississippi and Louisiana all had a shot at the seat.

I am now hearing that the White House is seriously looking at several candidates from Mississippi. The most prominent name that I am hearing as a candidate is Mississippi Supreme Court Justice James Graves. Justice Graves is qualified with eight years on the Supreme Court and experience as a trial judge before that.

You would expect there to be many people maneuvering to influence who gets this major appointment. A lot will depend on what the White House is looking for in court of appeals judges. If it is looking for someone in their fifties, then it will be tough to beat Justice Graves. President Bush often opted to fill appointments with young people who would likely hold the position for thirty years or more. Examples include Judge Sul Ozerden and Judge Dan Jordan. We do not know enough about President Obama yet to conclude if he will follow a similar strategy. All we really know is that Obama is moving slowly at making Mississippi appointments such as U.S. Attorneys, Marshals and Judge Barbour's District Judge seat.

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A few weeks ago in this post I speculated that 5th Circuit Court of Appeals Judge Rhesa Barksdale would soon take senior status. The Clarion-Ledger confirmed the news in this article today. Judge Barksdale will continue to work, but will hear a reduced case load.

This creates an opening on the 5th Circuit. Currently on the 5th Circuit from Mississippi are Barksdale, Judge Grady Jolly and Judge Leslie Southwick. Since all three are conservative, the vacancy gives President Obama the chance to appoint the only non-conservative Mississippian on the 5th Circuit. But I am hearing that a Mississippian may not get the slot at all with it instead going to someone from Louisiana. I hope that is not the case.

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It's been six months since the inauguration of President Obama and he has nominated only three of seventy-nine open federal judge positions. This website lists each open position and its status. I heard that Obama would be more interested in federal judge positions than President Bush, because President and Mrs. Obama are both lawyers. But this supposed interest has not translated into speed in filling vacancies.

Judge Barbour took senior status three years ago and we are still waiting on the confirmation of a replacement. At the end of Bush's term he nominated a Meridian lawyer, but the Senate never confirmed him. All indications are that Obama will nominate Jackson lawyer Carlton Reeves for the position, but no one seems to know when the nomination will occur.

On a related topic, by all accounts Judge Barksdale will take senior status with the 5th Circuit Court of Appeals in the near future. While it's natural to conclude that his replacement will be from Mississippi, I am hearing that there is a likelihood that the nomination will go to a Louisiana lawyer or judge recommended by Senator Mary Landrieu (D). This would be a real blow to Mississippi and much less likely to occur if one of Mississippi's senators was a Democrat.