Questions and answers on judicial nominations
There's nothing quite like a conversation about nominations to the federal bench to bring out the lawyers. On Steve Novick's post, responding to WW's article, all about the process of selecting federal judges, one of the applicants - Mark Johnson - posted a comment. Senator Ron Wyden's chief of staff, Josh Kardon, posted a response.
First, excerpts from Johnson's critique:
As a lawyer who applied for appointment, I know that it's my unspoken duty to go and lick my wounds in private, but it's not my in nature to ignore unfairness. And yes, I thought the process was unfair and I was deeply offended by it. ...Your description of the voting process simply confirms that the process was based on political preferences and not objective criteria. And to tell us that the process was inherently fair because there were women and minorities voting is, bluntly, sexist and racist. It's judging individuals based on stereotypes and it is wrong. ...
I know I'm going to be excoriated for saying this, but someone has got to do it, and I might as well be the first: I applied for these appointments, and I was not granted the courtesy of an interview. Based on my qualifications and the makeup of the committee, I presume that the reason is either (1) because I have represented unpopular causes on behalf of my community or (2) because I am "too gay."
I hope that the other candidates will speak up as well. In the meantime, I hope that "Ron" will do what he should have done when he received the committee's recommendations, which is to reject them and start over. Or if, as has been suggested, the nominees were chosen before this process started, then he should own that and say so. The same is true if the Senator simply doesn't care to defend a controversial choice before the Senate. There's no sense pretending that this is an open process if it's not.
And then, excerpts from Kardon's response:
Forty lawyers applied to receive an interview for the two federal judgeships and after some discussion by the selection committee, it was decided that ten attorneys would be interviewed. ...I am stunned, Mr. Johnson, that you have chosen to accuse the selection committee of possible homophobia to explain your rejection. ... I strongly believe every member of the selection committee is absolutely dedicated to equal rights for the GLBT community, and I take great offense that you would accuse these fine, progressive attorneys of bias against their gay and lesbian colleagues.
Here is another objective fact to facilitate your understanding, Mr. Johnson. If even a couple of your colleagues had voted for your application you could have received an interview. Please do not compound your reprehensible charge by suggesting that every member of the judicial selection committee is homophobic.
You may be aware that Ron Wyden was the first U.S. Senator to stand up for gay marriage, and was one of only a handful in the Senate to vote against DOMA. You may be aware that Senator Wyden has been extremely vocal about ending Don't Ask, Don't Tell. You may also be aware that he has fought for the rights of GLBT federal employees to receive the same benefits for their partners as their married counterparts. I want to assure you, Mr. Johnson, that if I had heard one inkling of homophobic commentary in that committee room I would have personally escorted that individual to the door on Senator Wyden's behalf. What you have alleged is false, irresponsible, and highly insulting to your colleagues.
Further, I want it to be known that Senator Wyden distinctly charged the committee with a need to find diverse candidates. On no fewer than four occasions, I personally addressed the selection committee and implored them to send the Senator a diverse list of finalists. ...
Please allow me to now dispel your ridiculous suggestion that the committee chose not to interview you on the basis of your controversial clients. ... The committee voted overwhelmingly to interview Dennis Balsky. Mr. Balsky is nationally renowned for having represented some of the most controversial death-row murderers of our times including Kip Kenkel, the boy who shot fellow students in Springfield, Oregon. He was a wonderful, compelling candidate. The committee overwhelmingly voted to interview Bob Weaver. Mr. Weaver has represented the most controversial figures in Oregon criminal courts over the last two decades, including Isaiah Rider and Tonya Harding. He is an outstanding advocate and a lawyer's lawyer, and the committee was wise to interview him. The committee voted overwhelmingly to interview Steve Wax who has defended every sort of controversial criminal defendant over the years as the head Federal Defender for Oregon. His clients range from murderers to alleged terrorists held at Guantanamo. ...
In closing, I would like to speak to all of the people in this community who share Senator Wyden's commitment to diversity. Senator Wyden had nine appointments to the judicial selection committee, and six of his nine choices were women and people of color. ... [A]fter devoting well over a hundred hours each to the task, they voted for the individuals who they believed were best qualified for the federal bench. No one was more disappointed to see no women, no minorities, and no representatives of the GLBT community emerge from this process than Senator Wyden...
Senator Wyden is 100% committed to fighting for equality for all of America's people, and recognizes that the struggle for equality must continue every day at every level of public and private enterprise. He has chosen precisely four federal judges over the course of his career. Of those four, one was the first African-American judge ever appointed to the Oregon bench and two were the first two women appointed to the Oregon bench
There's quite a bit more in both comments. Read their comments in full - Mark Johnson and Josh Kardon. Discuss.
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July 23, 2009
Posted in notable comment. |
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2:17 p.m.
Jul 23, '09
I don't know Mark Johnson, no doubt he's a fine lawyer. But his letter does not at all make his case that he has the dispassionate and objective temperament generally listed as one of the most necessary characteristics for nominees for the bench. In fact his letter creates quite the opposite impression.
Rule one of politics: don't whine, even if justified; it only makes you look like a whiner.
2:27 p.m.
Jul 23, '09
Rule two of politics: If you are a whiner, for God's sake hide it, don't flaunt it.
Jul 23, '09
Johnson never should have "gone there" with either excuse. Even if one or two of the committee members didn't like gays and he offers no evidence of that, that doesn't explain why he didn't get enough votes for an interview. And Wyden's guy clobbered him pretty good on the "controversial clients" claim. The committee decided to interview candidates with murderers, mass murderers, and terrorists for clients, but Johnson's clients were just too hot to handle to grant an interview! Stupid theory. He should have listened to the little warning bells in his head and kept his mouth shut.
Jul 23, '09
Why do women and minorities have to split the 7 positions and white boys get all the rest. Because of past discrimination (centuries), women should have 7 seats on the committee and men 6. Within the two groups, you should have a range of people....white, black, hispanic, etc. Women are the majority population, they should have more seats.
3:46 p.m.
Jul 23, '09
Well...
As one of the oppressed minorities (I guess) by virtue of being a woman, I'm not so impressed with choosing a woman for the sake of having a woman.
I want to see more women in roles of authority and leadership because it's a great role model for my daughter and frankly--I think women can often bring a different thought process and approach. But it matters more to me to have the most qualified, most skilled, most talented people in those positions more than it matters to me that we have women in them.
Perhaps we need to dig deeper so that there's not so much apparent mutual exclusivity in those requirements.
Jul 23, '09
Yes, yes, yes. My response exactly, backbeat.
Wyden actually had okay numbers for his committee selections. Two-thirds and I won't complain. Merkley received four picks and chose 3 white guys and a white woman. Not so good.
Jul 23, '09
It's interesting that Josh Kardon took lots of time to defend Wyden on this issue, but he did nothing to defend Wyden when he was hammered on his so-called health plan.
Jul 23, '09
The process that led to these nominations was probably as flawed as ANY selection process undertaken by human beings but seems to be better and more objective than most. Sen. Wyden does not pay lip service to diversity nor does he "pander" to any group. Pandering implies insincerity and no matter whether I always agree with him that is the last word I would ever use to describe Wyden. In the coming years I have no doubt that we will have more and more individuals of every stripe applying for and receiving these positions - mostly due to the efforts of exactly the folks on this committee(and others like them) who some feel have failed miserably in their duty to choose the most appropriate candidates. In the meantime, I have no problem with the chosen candidates who it seems are generally agreed to be eminently qualified and yet somehow now unqualified because they are male and Caucasian. Our job as citizens who care about diversity and what it means in terms of power and decision-making is not to denigrate these accomplished individuals or to chastise the deliberative process that recognized their accomplishments, it is to work hard to make sure that people from every demographic and walk of life are given the opportunity to also achieve and be recognized at the same level.
Jul 23, '09
Please don't make comments about people you don't know. Mark Johnson is a very talented lawyer and he would make a great judge. He should not be vilified for pointing out the perceived flaws in the selection process, nor should that have been cited as an example of lack of judicial temperament. One of Oregon's great federal judges, Gus Solomon, was known to "lose it" on occasion, and nobody disputes his legacy.
The five lawyers and judges proposed by Sen. Wyden's committee are also very capable, and Justice Balmer and Michael Simon are really outstanding. But in my opinion, Mark Johnson would have fit right in with that group.
Jul 23, '09
Bicker. Bicker. Bicker. Ick.
There are talented lawyers across Oregon who want to be judges or run for other positions some day. If they are reading bickerfest on blueoregon does it really make the process appealing? Are qualified candidates going to lose interest because of this sort of discourse?
Get on the phone. Call your lawyer. Phone your friends. Ask them to get involved in this issue. Write a letter to the editor that positively encourages LGBT candidates instead of bashing everyone involved.
Remember a race a while back when a woman was brought on the scene because they wanted a quick fix that would appeal to women? Yeah, that's right. Sarah Palin. Now we are stuck with her. Let us not forget what happens when names are put up without a process.
The process doesn't appear to be broken. We need more people to get into the pipeline.
Jul 23, '09
No one would be criticizing Johnson personally for pointing out "perceived flaws in the selection process" if he hadn't gone on to blame his failure to be selected on bias against gays and his supposedly controversial clients. It is hard to tell from where I'm sitting whether the process was a good one or a poor one, but it is not difficult to tell that Johnson lashed out unfairly at some highly respected attorneys.
IMHO it is plain silly to say that Johnson is on par with Simon, Balmer, Kantor or Wax. Johnson has no experience in the federal courts and no bench experience. He is a family law attorney, an honorable specialty certainly, but it provides no foundation for serving as a federal judge. I know several people who applied and were not asked to interview. They responded like adults.
Jul 23, '09
I love it, a crotch politics circular firing squad. Keep it up, it's riotous.
You should keep it completely fair and assign every lawyer in the bar directory a number and then let a computer program pick one at random. No bias at all.
<h2>Friggin' loons.</h2>5:15 p.m.
Jan 3, '11
krazy