As the political battle begins over Supreme Court Justice Antonin Scalia’s replacement, Georgia’s own federal judicial nominating controversy has just about petered out.
DeKalb County Judge Dax Lopez said in a statement that “divisive politics” kept him from a possible seat on Georgia’s U.S. District Court in Atlanta. President Barack Obama’s nominee to replace Scalia, who died last week, can expect much the same fate.
If Senate Republicans have their way, Obama’s high court nominee won’t even get a confirmation hearing before the Senate Judiciary Committee. Neither will Lopez.
Experts say it isn’t supposed to be this way. But the nomination process for federal judges has become much like the battle to seat a Supreme Court justice: mired in partisan politics, disturbingly slow and fraught with ideological peril.
Despite a 2013 rule change by Senate Democrats that blocked filibusters on judicial nominees, 81 federal judgeships remain vacant nationwide.
The U.S. District Court vacancy that Lopez was expected to fill is classified as a “judicial emergency” because of the court’s heavy caseload and the 18 months-plus that the position has been vacant.
Earlier this week, Obama blamed the problem on the Republican-led Senate, which “will not confirm well-qualified nominees even when they’re voted out of committee without objections,” the president said Tuesday. “This has become a habit, and it gets worse and worse each year.”
In that difficult environment, a nominee’s positions on certain issues can carry more weight than his or her qualifications in the eyes of some senators, their constituents and special interest groups.
Whether it’s abortion, gun control, labor rights or religious liberty, nominees’ activities, writings and rulings on a few hot-button issues can quickly disqualify them from a lifetime appointment as a federal judge.
Lopez found this out the hard way.
Since President Barack Obama needed both of Georgia’s conservative Republican senators to sign off on his federal district court nominee, the president leaned to the right and selected Lopez, a Republican and member of the conservative Federalist Society.
Lopez, who’s Jewish and Puerto Rican, had support from prominent state Republicans and seemed poised to breeze through the confirmation process.
But after indicating his initial support for Lopez, Georgia Sen. David Perdue was contacted by state Republican lawmakers, county sheriffs and other conservatives who opposed Lopez’s nomination. They thought that Lopez’ position as a board member for the Georgia Association of Latino Elected Officials – while a sitting judge – deserved more scrutiny.
Most of the concern dealt with the association’s “statement of principles on immigration,” which says the solution to illegal immigration “is not criminalizing undocumented immigrants; it is comprehensive reform” that would “legalize undocumented immigrants working and living in the U.S. while creating a workable path to U.S. citizenship.”
As advocates for the immigrant community, the Georgia Association of Latino Elected Officials also has urged police not to honor requests from Immigration and Customs Enforcement to hold jail inmates who are in the country illegally up to 48 hours so federal authorities can round them up for deportation.
That remains a sore point for Union County, Georgia, Sheriff Mack Mason, who wrote in an August letter that “Dax Lopez has made it clear that he agrees with GALEO’s mission. That mission has been vividly illustrated over the last decade. GALEO has repeatedly attacked and condemned law enforcement officials that dare to enforce immigration laws.”
Gwinnett County Sheriff Butch Conway also wrote in August that “Judge Dax Lopez’s board membership on GALEO causes me great concern regarding his ability to serve as an impartial federal district judge.”
After receiving more background material on Lopez from the Department of Justice and other sources, Perdue began to have similar misgivings about Lopez’s work with the Latino officials association. A personal meeting with Lopez did not allay his concerns.
So in January, Perdue refused to provide a “blue slip” on Lopez’s behalf to his colleagues on the Senate Judiciary Committee, signaling his unwillingness to confirm Lopez as Georgia’s first Latino federal judge with a lifetime appointment.
“After a thorough review of the professional and judicial record of DeKalb County Judge Dax Lopez, I have become uncomfortable with his long-standing participation in a controversial organization, including his service on its board of directors,” Perdue wrote in a statement. “I believe similar concerns would be raised by many of my colleagues, making Judge Lopez’s final confirmation unattainable.”
Georgia Sen. Johnny Isakson was disappointed that Lopez didn’t get a confirmation hearing, but thought it was fruitless to submit his own blue slip, knowing Perdue’s opposition, said an email from Amanda Maddox, Isakson’s spokeswoman.
Perdue’s decision caught Georgia’s political establishment by surprise, said conservative radio host and columnist Erick Erickson of Macon. “I don’t blame (Perdue) for doing it, mind you, but my position was of all the judges that Obama could have appointed, that Lopez was the most reasonable that we could have hoped to get,” he said.
I don’t blame (Perdue) for doing it, mind you, but my position was of all the judges that Obama could have appointed, that Lopez was the most reasonable that we could have hoped to get.
Conservative radio host and columnist Erick Erickson
Lopez took the news with grace.
“While I am disappointed in the outcome of the federal nomination process, I take immense pride in the fact that not one of my detractors was able to find issue with any portion of my judicial record, a record that reflects fairness, efficiency and a fierce fidelity for the law as it is,” he wrote in a statement.
Jerry Gonzales, the executive director of the Georgia Association of Latino Elected Officials, said the organization’s position on immigration was “fairly mainstream” and similar to that of the U.S. Chamber of Commerce. He said Lopez, as a sitting judge, never weighed in on any policy considerations that the association undertook and abstained from votes on those policy positions.
Gonzales thinks Lopez is being held to an unfair litmus test on immigration, simply because he’s a Latino.
“Absent any deed, action or words that the senator can point to, that’s what we’re left with,” Gonzalez said. “He blocked him because of his ethnicity.”
He said an African-American nominee would never face similar scrutiny for membership in a group such as the NAACP.
Robert Maldonado, president of the Hispanic National Bar Association, agreed.
“We find it difficult to see how his association with GALEO can be somehow disqualifying. Our only inference is that he’s unacceptable to Sen. Perdue because he is a Latino who believes in Latino participatory democracy,” Maldonado said in a statement.
Perdue spokeswoman Megan Whittemore said Lopez’s ethnicity did not play a part in the senator’s decision to halt the judge’s nomination.
The Georgia Code of Judicial Conduct allows judges to serve on educational, religious, charitable, fraternal or civic organizations not conducted for the economic or political advantage of their members.
But the code’s advisory language adds that the “changing nature of some organizations and of their relationship to the law makes it necessary for judges regularly to re-examine the activities of each organization with which they are affiliated, to determine if it is proper for them to continue their relationship.”
Lopez resigned from the board of the Latino officials organization after being nominated by Obama. Gonzales said that was standard procedure. Luis Aguilar also resigned his board seat for the association when nominated by President George W. Bush to head the Securities and Exchange Commission in 2008, Gonzales said.
It was former Georgia Gov. Sonny Perdue – Sen. David Perdue’s cousin – who appointed Lopez for the county judgeship in 2010, making him just the second Latino trial court judge in Georgia.
Two years earlier, while Lopez was in private practice and a treasurer with the Latino association, he wrote then-Gov. Sonny Perdue, requesting a gubernatorial veto of two pieces of legislation, House Bill 978 and Senate Bill 350. Both measures were believed to disproportionately affect Georgia’s growing immigrant community.
Gov. Perdue did veto HB 978, which authorized the impounding of vehicles from operators who had no valid driver’s licenses. But he signed Senate Bill 350 into law, making a fourth conviction for driving without a license a felony.
The measure also requires police to determine the nationality of anyone jailed after being convicted for driving without a license. The Latino officials association opposed the measure, saying it would create tension between immigrants and law enforcement while making crime victims and witnesses less likely to contact police.
Lopez did not return calls requesting comment for this story.
If senators had concerns about Lopez’s position on immigration, a confirmation hearing is where those issues should be addressed, said Kyle Barry, director of justice programs at the Alliance for Justice, which advocates for a fair federal judiciary. “There’s no basis here to disqualify a candidate outright,” Barry said.
And it’s highly unlikely that Senate Judiciary Committee Chairman Sen. Chuck Grassley, R-Iowa, would schedule a hearing for Lopez over Perdue’s objection.
Without being privy to discussions about Lopez, it’s impossible to know exactly what prompted Perdue’s decision.
D.A. King, an opponent of illegal immigration in Georgia who founded the website www.thedustininmansociety.org, opposed Lopez’s appointment. He said he made clear in meetings with Perdue’s staff in Atlanta and Washington that there would be a political price if Perdue didn’t block Lopez’s confirmation.
Gonzales had a similar message for Perdue, calling his decision to kill Lopez’s bid “a huge historic misstep.”
“When (Perdue) has to face voters again, this state is going to look very different,” Gonzalez said. “And the Latino electorate is not going to forget this at all.”