Could Bipartisan Backroom Deal Fill 11th Cir Vacancies?

By William Peacock, Esq. on September 18, 2013 | Last updated on March 21, 2019

The Eleventh Circuit has twelve seats. One has been vacant for three years. Another has been vacant for fourteen months. And in two weeks, there will be a third vacancy when Judge Barkett leaves for Europe. Former Chief Judge Joel Dubina, meanwhile, is holding off on taking senior status until there is only one vacancy, as he doesn't want the court's business to grind to a halt.

The holdup, three years in the making, begins with the nomination of Jill Pryor, who often donates to (gasp) Democrats and gave $2,500 to President Barack Obama's re-election campaign. She was nominated last year, but two Georgia Republican senators, Saxby Chambliss and Johnny Isakson, withheld "blue slips," grinding the nomination to a halt.

Now, rumor has it, per the Southern District of Florida Blog, that a deal between the Republican senators and state Democrats has been reached, and if approved by the White House, could lead to two of those vacancies being filled, as well as four district court vacancies.

A 'West Wing'-like Deal for the 11th Circuit Court of Appeals ...

Fans of The West Wing may remember the deal struck in Season 5 where, in order to appoint a "liberal lion" to the Chief Justice seat on the court, the Democratic administration appointed a young conservative to the other seat.

Even if you didn't see the show, you get the point. Democrats get their appointment approved, and in exchange, let the Republicans' choose the judge for the other seat.

Democrats' Choice: Jill Pryor

We covered Pryor last year, but to briefly recap: Pryor clerked for Eleventh Circuit Judge J.L. Edmonson before joining Bondurant, Mixson & Elmore as an associate in 1989; she became a partner at the firm in 1997.

Republicans' Choice: Judge Julie Carnes

After serving as a clerk to Fifth Circuit Judge Lewis R. Morgan, Carnes was an Assistant U.S. Attorney for twelve years before being nominated to the United States District Court bench by President George H.W. Bush in 1991 (confirmed in 1992). According to Wikipedia, she was also a member of the U.S. Attorney General's Advisory Committee on Sentencing Guidelines from 1988 to 1990, was a Special Counsel to the U.S. Sentencing Commission in 1989, and a Commissioner on the U.S. Sentencing Commission from 1990 to 1996.

And for the District Court ...

Democrats' Choice: Leigh Martin May (whose nomination was blocked in 2009).

Republicans' Choices: Mark Cohen (the two senators' previous choice for the Court of Appeals), and state court judges Eleanor Ross (DeKalb County) and Michael Boggs (Georgia Court of Appeals).

Not Completely Unfeasible

Simple math says that's 1 for 1 on the appeals court and 1 for 3 on the district court. Why might the Democrats consider such a bargain? With Judge Barkett on the way out in two weeks, three vacancies could cripple the Eleventh Circuit's ability to process cases. Judge Dubina is also waiting to step down. Should these nominations go through, it would result in two more vacancies that President Obama could fill, absent further delay tactics from Republicans.

It is interesting to note that should Barkett and Dubina's seats come open, both could be subject to "blue slip" delays, as Barkett is from Florida, which has one senator from each party, and Dubina is from Alabama, which has two Republican senators. Judges' seats typically stick to their states. A single blue slip withheld by a state's senator can stall a nomination. Republicans could attempt to stall any future nominations until after the 2016 election.

And yes, for those counting, should the nominations go through, the bench will have two Carnes and two Pryors.

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