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Fight Brews Around Open Appeals Court Judgeship

By Lee Hedgepeth
Alabama Political Reporter

A battle over a vacant judicial seat on the 11th Circuit Court of Appeals is beginning to surface. Tension has been mounting since the judgeship opened, due to Montgomery Judge Joel Dubina’s semi-retirement in October. The 11th judicial circuit includes Alabama, Florida, and Georgia.

According to a political custom known as Senatorial Courtesy, home state Senators enjoy a large degree of deference in the process of choosing a judge, due to the fact that theirs is the body constitutionally obliged to either approve or deny the nominee’s appointment. In effect, he and Shelby can “blue slip” the nominee, preventing the nomination altogether. (Senator Patrick Leahy, the chairman of the committee could abandon this requirement, Republican veteran legislator Orrin Hatch has done in the past)

However, this will be the first time a Democratic administration has ever had an opportunity to appoint an Alabama judge, and some advocate making it a bold choice. Alabama’s only Democrat in the US Congress, as well as the only African American, Terri Sewell of Selma, has made clear that it is important to diversify the federal judiciary, but not necessarily at the expense of lower court diversity.

Her comments were based on speculation that current Alabama District Court Judge Abdul Kallon would be good pick considering his unanimous Senate approval to his current position.

She told the Montgomery Advertiser that “To elevate one black judge to a higher court and give up racial diversity on the lower court is a return to the past and a major step backward, not forward. I would suggest we also fill some of those vacancies on the lower federal court with African-Americans as well, and that’s a point that I will continue to make.”

Several lower court judgeships held by minority jurists have already been vacated by other recent semi-retirees like Myron Thompson.

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The current court consists of six white, one black and one hispanic judge.

Former Judge and Civil Rights leader U.W. Clemon has said an African-American Alabama appointment would be “historic,” which can certainly be understood given both the symbolically appropriate season of the 50th anniversary of a host of civil rights landmark events, and the fact this is the first Democratic appointment to this particular Court, which frequently rules on minority-centered issues like voting rights and legislative redistricting.

But…the road does not look smooth.

Senators Sessions and Shelby say they are working with the White House to find qualified candidates for this appointment and that of the lower district courts, but it seems like the obvious choice of Abdul Kallon is out due to concerns about keeping his cohort diverse as well.

In addition, Kallon was not on the list of candidates deemed qualified and recommended by the Alabama Democratic Party. While they are not customarily a large role-player in judicial nominations, the state Democrats formed an advisory committee and provided the following list to the President for consideration: (in no particular order)

Collins Pettaway – Dallas County circuit judge
Susan Redmond – a federal prosecutor based in Montgomery
Mark Sabel – an attorney in Montgomery
Tamara Harris Johnson – an attorney in Birmingham
Jeff McLaughlin – a former state legislator and Guntersville attorney
Ben Morris – an attorney in Birmingham

Judicial nominations were in the national news recently as Democratic US Senate Majority Leader Harry Reid invoked the “nuclear option,” which has now ended the possibility of filibuster by the minority party on judicial nominations such a the one involved here. However, because of the long adhered to practice of Senatorial Courtesy and Senator Sessions particularly powerful role in the situation, the battle for this seat will continue.

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