Five judicial vacancies currently need to be filled on a federal trial court in Georgia and on the powerful court of appeals that oversees judges’ decisions in three southern states. Additionally, the President of the United States is a Democrat who recently won a clear reelection victory. So it is a bit surprising that the White House is considering a deal that would effectively allow Republicans to name four federal judges in Georgia while giving President Obama only two nominees.
Under the proposed deal, Sens. Saxby Chambliss (R-GA) and Johnny Isakson (R-GA) would agree to stop blocking attorney Jill Pryor’s nomination to the United States Court of Appeals for the Eleventh Circuit — a nomination that they have effectively held up for well over 1000 days. In return, Obama would nominate a George H.W. Bush-appointed judge — Chief Judge Julie Carnes of the Northern District of Georgia — to the other open seat on the Eleventh Circuit, creating a fourth vacancy on this federal trial court. Chambliss and Isakson would then be allowed to select three of the four attorneys named to these seats.
At least one precedent suggests that President Obama may regret striking this kind of deal. In 1997, President Clinton named Judge Frank Hull to the Eleventh Circuit as part of a compromise with Republican senators. Fourteen years later, the Eleventh Circuit became the only federal appeals court in the country to declare the Affordable Care Act unconstitutional — every other appeals court to consider the question rejected the conservative arguments against the law. Hull provided the key vote to strike the law. While no one can know how the Roberts Court would have behaved if a less conservative judge had instead voted to uphold the law, the Supreme Court would have been much less likely to take this case if federal circuit courts were unanimous in upholding the law.
Additionally, at least one of the district court nominees Chambliss and Isakson are expected to name, attorney Mark Cohen, defended a voter suppression law when he was a lawyer for the State of Georgia. Though an attorneys’ actions while representing a client do not necessarily reflect their personal views, Senate Republicans used former DC Circuit nominee Caitlin Halligan’s advocacy in favor of gun laws on behalf of the State of New York as a reason to block her nomination. Now, however, Chambliss and Isakson apparently believe that the White House should ignore Cohen’s advocacy and nominate him anyway.
Ultimately, if the White House agrees to this GOP-friendly bargain, it will likely be because of an absurd Senate practice that gives individual senators veto power over judicial nominees. Under the Senate’s “blue slip” rules — an anachronistic process that allows senators to veto nominees from their state — the state of Georgia is allocated certain seats on the Eleventh Circuit and Chambliss and Isakson have unilateral authority to block any nominees to those seats. Moreover, they are also empowered to block any nominee to a district court in Georgia. Though this process is rooted in a patronage system that no longer exists, Senate Democrats insist upon maintaining it. This Georgia deal could be the result.
Senate Judiciary Chair Patrick Leahy (D-VT) has the power to prevent this deal from happening, however, and to eliminate Chambliss and Isakson’s veto power over Georgia nominees. In 2003, former Judiciary Chair Orrin Hatch (R-UT) abandoned the blue slip rule in favor of process that allowed judicial nominations to move forward “provided that the Administration  engaged in pre-nomination consultation with both of the home-state Senators.”