Notice & Comment

Senator Raphael Warnock and Federal Judicial Selection, by Carl Tobias

The Georgia election that pits Senator Raphael Warnock against Herschel Walker could actually determine which party realizes a majority in the narrowly divided U.S. Senate. The party which captures this majority will exercise substantial responsibility for appointing lower federal court judges. A profound duty that the U.S. Constitution assigns the Senate is rendering crucial advice and consent about nominees whom the President selects.[1] Critical to appropriate discharge of this essential responsibility that Warnock fulfilled with particular skill is the dynamic role played by senators from jurisdictions where empty posts materialize. Senators directly identify exceptional candidates, assemble complete applications, closely review the prospects, and duly interview choices whom the senators recommend to the President. After the chief executive nominates aspirants, home state politicians must introduce nominees to Senate colleagues and the Judiciary Committee and encourage plentiful members to support the nominees proffered. Senator Warnock has discharged this important responsibility with diligence, expertise, comprehension of appointments’ crucial, although mixed, history, impressive respect for candidates, nominees, and colleagues, and considerable grace over his excellent public service. 

Illustrative throughout Joe Biden’s presidency are the confirmation efforts which Senator Warnock has perceptively and thoroughly conducted with his able colleague Senator Jon Ossoff (D-GA).[2] For instance, the politicians have acutely collaborated when attempting to fill a vacant Eleventh Circuit Georgia judgeship and when seating two highly competent, mainstream Northern District of Georgia jurists thus far.

After Biden had masterfully won the presidency, the White House Counsel wrote abundant senators deftly encouraging them to recommend prominent, centrist, diverse aspirants.[3] On January 10, 2022, Biden carefully selected Nancy Abudu for the Eleventh Circuit opening after much consultation by the President with the Georgia senators, who applauded the chief executive’s historic Abudu nomination.[4] The candidate had professionally worked at the Southern Poverty Law Center (SPLC), and she was the Florida ALCU Legal Director, ACLU Voting Rights Project Senior Staff Counsel, plus an Eleventh Circuit staff attorney.[5] Her committee hearing in late April provoked multiple GOP senators’ criticisms of the nominee.[6] 

The members castigated SPLC for attaching the hate-group label to conservative groups, notably the Alliance Defending Freedom, which promoted criminalization of sexual acts by lesbian, gay, bisexual, transgender, or queer (LGBTQ) people while staunchly rejecting anti-discrimination laws and regulations for these couples and transgender persons.[7] For instance, Senator Chuck Grassley (IA) aptly proclaimed “There’ve been repeated examples of the center targeting mainstream conservative groups.”[8] Senator Ted Cruz (TX) asserted that the group had called some GOP lawmakers, including him, extremist.[9] The politician wondered how anyone not on the radical left or someone who is conservative or religious would have any confidence when they appeared in the pick’s courtroom.[10] Senator Josh Hawley analogously criticized Abudu, considering her responses “absolutely extraordinary” while he could not believe the President would afford a candidate from that group with this record and that she refused to “condemn this hateful, violent rhetoric.”[11] Abudu directly replied that her SPLC practice upheld constitutional rights of individuals who could not have access to justice without pro bono counsel.[12]

She also responded that “commitment to equal justice under law – to racial justice, to ensuring that all people are able to exercise their constitutionally fundamental rights – has been the focus of my work with the Southern Poverty Law Center, and I’m very proud of the work that I’ve done in that capacity.”[13] Senator Dick Durbin (IL), the Chair as well “contrasted the GOP’s rhetoric about Abudu with its backing of judges nominated by former President Donald Trump, despite their histories as legal advocates and their affiliations with political organizations, [finding] it hard to believe that Republican judicial nominees can set aside their roles as advocates but Democrats cannot.”[14] In late May, the panel effectively deadlocked, requiring that the Senate discharge her from committee which it has yet to propose[15] The nominee waits on the body to act when the Senate promptly returns.[16]

With the district court nominees, Georgia politicians Warnock and Ossoff seemed to play more important roles, because they capitalize on a diverse advisory committee of expert lawyers, jurists, and civil rights advocates to help canvass, interview, and suggest candidates.[17] For example, when the President ascertained that he would include Victoria Calvert and Sarah Geraghty with his first cohort of Georgia nominees,[18] the legislators mustered praise for Biden and the nominees, the candidates whom the senators had afforded.[19] Calvert became the initial federal public defender on the tribunal after being a King & Spalding lawyer.[20] Geraghty had practiced as senior counsel at the Southern Center for Human Rights (SCHR), which efficaciously pursued successful litigation that involved Georgia prisoners’ treatment and conditions.[21] The Senate marshaled a December 1 hearing for both nominees at which GOP members vigorously questioned each about the clients whom they represented.[22] For instance, Grassley articulated concerns as to Calvert’s statements that “prosecutors don’t see our clients as people,”[23] while the nominee later regretted her speech’s phraseology, pledging that she would be fair to litigants, if confirmed.[24] 

On January 20, the Senate panel smoothly approved Calvert and Geraghty on bipartisan votes, partly because Ossoff – Warnock’s Georgia colleague who serves on the panel – had spoken with Democratic and GOP committee members about both nominees’ exceptional qualifications, while he deftly reiterated those critical perspectives in the meeting ahead of the nominee ballots.[25] During late March, Calvert realized appointment on a 50-46 vote.[26] Nine days later, Geraghty promptly captured approval with the same margin.[27]

In conclusion, Raphael Warnock has thoroughly, professionally, and fairly served the Georgia electorate by discharging his crucial responsibility to advise and consent on judicial nominees and comprehensively insure that Georgia vacant positions which materialize are quickly filled with highly talented, centrist judges.[28]  

Carl Tobias is the Williams Chair in Law, University of Richmond. I wish to thank Margaret Sanner and Carley Ruival for ideas, Leslee Stone for processing, and Russell Williams for generous support. Errors that remain are mine alone.

[1] U.S. Const., art. II, § 2; see Carl Tobias, Keep the Federal Courts Great, 100 B. U. L. Rev. Online 196, 199 (2020).

[2] In 2021, Warnock defeated GOP Senator Kelly Loeffler whom Georgia Governor Brian Kemp appointed to fill the Senate seat vacated by GOP Senator Johnny Isakson, who resigned for health reasons. Ossoff defeated incumbent GOP Senator David Perdue in 2021.

[3] See Letter from Dana Remus, White House Counsel Designate, to U.S. Senators, Dec. 22, 2021; see also Madison Alder, Judicial Nominee Deadline Challenges Senate Democrats, Bloomberg, Apr. 23, 2021.

[4] White House, Office of the Press Secretary, Nominations Sent to the Senate, Jan. 10, 2022; see id., President Biden Nominates Twelfth Round of Judicial Candidates, Dec. 23, 2021; Senators Ossoff, Reverend Warnock Applaud Historic Nomination of Nancy Abudu to the 11th Circuit Court of Appeals, Dec. 23, 2021; Tia Mitchell, Federal Appeals Court to Get Its First Black Judge for Georgia, Atlanta J.- Const., Dec. 23, 2021.

[5] She was a Skadden Arps associate at her career’s outset. See sources cited supra note 4.

[6] See S. Judiciary Comm., Hearing on Nominees, April 27, 2022; see also Rose Wagner, One Nominee Left in Lurch at Senate Committee Vote on Judicial Picks, Courthouse News Serv., May 26, 2022.

[7] See sources cited supra note 6.

[8] Grassley is the Judiciary Committee Ranking Member. See sources cited supra note 6.

[9] See sources cited supra note 6.

[10] She worked for entities that “smear half this country as white supremacists and Klansmen.” See id.

[11] See Hearing, supra note 6; see also Laurel Duggan, Sen. Hawley Grills Biden Judicial Nominee Over Her Work for Southern Poverty Law Cases, Daily Caller, Apr. 27, 2022.

[12] See Hearing, supra note 6; see also Duggan, supra note 11.

[13] See sources cited supra note 6.

[14] See id.

[15] See S. Judiciary Comm., Exec. Business Mtg., May 26, 2022; see also Wagner, supra note 6.

[16] The Senate recessed to campaign in October and returns on November 14 for a lame duck session.

[17] The commission is diverse, and Chair Leah Ward Sears, former Georgia Supreme Court Chief Justice, vowed that it would suggest diverse candidates. Press Release, Sens. Warnock, Ossoff Announce Federal Nominations Advisory Comm’n, Mar. 16, 2001; Tia Mitchell & Bill Rankin, Group Advising Ossoff, Warnock on Federal Appointments Includes Civil Rights Activists, Atlanta J.- Const, Mar. 16, 2021. 

[18] White House, Office of the Press Secretary, President Biden Announces Eighth Round of Judicial Candidates, Sept. 30, 2021; Tia Mitchell, Biden Nominates Public Defender, Advocate to Atlanta-Based Federal Court, Atlanta J.- Const., Sept. 30, 2021.

[19] Jon Ossoff, U.S. Senate Confirms Victoria Marie Calvert to U.S. District Court for Northern District of Georgia with Bipartisan Support, Mar. 23, 2022 [hereinafter Ossoff, Calvert]; Jon Ossoff, U.S. Senate Confirms Sarah Geraghty to U.S. District Court for Northern District of Georgia with Bipartisan Support, Mar. 31, 2022 [hereinafter Ossoff, Geraghty].

[20] She is the Northern District’s second Black woman. Mitchell, supra note 18; sources cited supra note 19.

[21] She is the Northern District’s first civil rights lawyer. John Ossoff, Sen. Ossoff Delivers Remarks as Historic Georgia Judicial Nominees Pass Senate Judiciary Committee with Bipartisan Support, Jan. 20, 2022; Harsh Voruganti, Sarah GeraghtyNominee, Vetting Room, Oct. 25, 2021 (recounting her nearly two -decade career at SCHR and numerous successful prisoner rights cases); see sources cited supra note 18.

[22] S. Judiciary Comm., Hearing on Nominees, Dec. 1, 2021; see Rose Wagner, Senate Confirms Judges to Federal District Posts in California, Georgia, Courthouse News Serv., Mar. 22, 2022.

[23] She said this and “there’s no way I could ever be a prosecutor” in comments to an Emory trial advocacy class. See sources cited supra note 22.

[24] See Wagner, supra note 22.

[25] S. Judiciary Comm., Exec. Business Mtg., January 20, 2022; see Ossoff, supra note 21.

[26] Admin. Office of the U.S. Courts, Judicial Vacancies, Confirmations (2022); see Ossoff, Calvert, supra note 19; Warnock, U.S. Senate Confirms Victoria Calvert to U.S. District Court for Northern District of Georgia with Bipartisan Support, Mar. 22, 2022 (Warnock urged colleagues to favor nominees).

[27] Judicial Vacancies, Confirmations, supra note 26; see Ossoff, Geraghty, supra note 19; Bill Rankin & Tia Mitchell, Senate Confirms Geraghty to be Federal Judge in Atlanta, Atlanta J.- Const., Mar. 31, 2022.

[28] My focus here is home state Senator Warnock’s efforts to fill Georgia federal circuit and district vacancies, so his powerful support and vote for Ketanji Brown Jackson’s elevation exceed its scope. See Senator Reverend Warnock Statement on Supreme Court Nominee Ketanji Brown Jackson, Mar. 25, 2022.

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