The Senate Judiciary Committee favorably reported all four of the California district judge nominees on its docket yesterday.
The Senate is in recess until Monday and I will be away on client business all week. At 2:00 on Wednesday afternoon, the committee will hold a hearing on the nomination of Jane B. Stranch to be United States Circuit Judge for the Sixth Circuit. There will be an executive business meeting on Thursday but there are no nominees on the docket and I doubt that will change.
Here are the latest league standings:
- United States Circuit Judge Sonia Sotomayor to be Associate Justice of the Supreme Court of the United States (nominated June 1, 2009; heard July 13-16, 2009; reported July 28, 2009; confirmed August 6, 2009).
- United States District Judge Gerard E. Lynch to be United States Circuit Judge for the Second Circuit (nominated April 2, 2009; heard May 12, 2009; reported June 11, 2009; confirmed September 17, 2009).
- Jeffrey I. Viken to be United States District Judge for the District of South Dakota (nominated June 25, 2009; heard July 29, 2009; reported September 10, 2009; confirmed September 29, 2009).
- On the Executive Calendar awaiting floor action:
- United States District Judge David F. Hamilton to be United States Circuit Judge for the Seventh Circuit (nominated March 17, 2009; heard April 29, 2009; reported June 4, 2009).
- United States District Judge Andre M. Davis to be United States Circuit Judge for the Fourth Circuit (nominated April 2, 2009; heard April 29, 2009; reported June 4, 2009).
- United States District Judge Beverly B. Martin to be United States Circuit Judge for the Eleventh Circuit (nominated June 19, 2009; heard July 29, 2009; reported September 10, 2009).
- United States District Judge Joseph A. Greenaway Jr. to be United States Circuit Judge for the Third Circuit (nominated June 19, 2009; heard September 9, 2009; reported October 1, 2009).
- State Judge Charlene E. Honeywell to be United States District Judge for the Middle District of Florida (nominated June 25, 2009; heard September 9, 2009; reported October 1, 2009).
- State Judge Irene C. Berger to be United States District Judge for the Southern District of West Virginia (nominated July 8, 2009; heard September 9, 2009; reported October 1, 2009).
- Roberto A. Lange to be United States District Judge for the District of South Dakota (nominated July 8, 2009; heard September 9, 2009; reported October 1, 2009).
- State Judge Jacqueline H. Nguyen to be United States District Judge for the Central District of California (nominated July 31, 2009; heard September 23, 2009; reported October 15, 2009).
- United States Magistrate Judge Edward M. Chen to be United States District Judge for the Northern District of California (nominated August 6, 2009; heard September 23, 2009; reported October 15, 2009).
- Dolly M. Gee to be United States District Judge for the Central District of California (nominated August 6, 2009; heard September 23, 2009; reported October 15, 2009).
- United States Magistrate Judge Richard Seeborg to be United States District Judge for the Northern District of California (nominated August 6, 2009; heard September 23, 2009; reported October 15, 2009).
- Heard in committee but not yet reported:
- Justice Barbara Milano Keenan to be United States Circuit Judge for the Fourth Circuit (nominated September 14, 2009; heard October 7, 2009).
- Nominated but not yet heard:
Looking forward to adjournment sine die (which appears to be sliding back to this side of Thanksgiving, subject to intra-party fallout among the Democrats on health care reform), I am authorized to opine publicly that, of those awaiting floor action, Martin, Honeywell, Berger, Lange, Nguyen, Gee, and Seeborg are likely to be confirmed this session if there is a concerted effort to clear the decks; the male circuit judge nominees and Chen face varying degrees of opposition that will likely delay them to next session. For Keenan and Stranch, neither of whom will have been reported by the committee by the end of next week, the greatest impediment to confirmation this session is the Senate calendar. Frankly, if all holds true on health care reform, November 5 will be the practical drop-dead date for committee action. So it goes without saying that those who have not been heard in committee by the end of next week probably have a snowball's chance in hell.
The impropriety of Tommy Norment
The Virginian-Pilot reports that Senate Republican Leader Tommy Norment has, since July 2008, been working for the College of William and Mary. According to the report, he is paid a $160,000 annual salary and, during the 2009 Session, he requested a $20 million state appropriation to the college. These facts may be of interest to people who are familiar with Delegate Phil Hamilton, another senior Republican budget conferee who reportedly accepted a $40,000 annual salary from a subsidiary that Old Dominion University created after Hamilton secured a $500,000 state appropriation for it. Some will be happy to draw parallels between these two situations, but that is not my purpose here. Rather, I raise a point that the Virginian-Pilot did not address (and wonder why they haven't addressed it, and urge them to augment their investigation). The point arises from the uniqueness of the fact that Norment, unlike Hamilton, is a lawyer and that he is providing legal advice to the college.
(The college happily concedes that Norment provides legal advice to the college:
Moreover, the college includes "legal counselor" among his titles in the faculty/staff directory.)
President Reveley sounds like a man proud of a frugal bargain: he's gotten a professor and an attorney for one low price. And the fact that Norment's salary seems market rate for a law professor, and that Norment has actually done work to earn it, does help distinguish his case from that of Hamilton. In fact, that may have impelled Reveley to disclose the legal representation--it makes Norment's employment look like a fair deal, rather than some shady, back alley quid pro quo. But, as I said, whether the deal is fair or not may differentiate Norment from Hamilton, but it's not what I'm interested in. (His partisan and factional adversaries will gleefully scrutinize that aspect, whether it has merit or not.)
As the Virginian-Pilot reports, the college is represented by the Office of the Attorney General. The Attorney General's duty to represent the college is conferred by statute, which makes his representation exclusive:
Code § 2.2-507(A) (emphasis added).
The use of outside counsel is strictly limited:
Code § 2.2-510 (emphasis added).
So it appears that Norment is prohibited by law from providing the college legal advice--and for the college to solicit or receive it from him. (That is not to say that doing so is criminal, only that it appears to be illegal.) Unless the Governor or Attorney General authorizes Norment to provide the college legal advice. And the Virginian-Pilot does not say whether either of them has; it only says that Norment sought, and then-Attorney General Bob McDonnell provided, an official opinion relating to the possibility of any conflict of interest between Norment's legislative role and his professorial role:
But where is the authorization required by Code § 2.2-510 to allow the college to receive legal advice from outside the Office of the Attorney General? That document would not be privileged; it would not contain legal advice either to Norment (a client of the OAG in his official capacity as a member of the General Assembly) or to the college. What was the basis for invoking the exception? Did the Governor decide McDonnell was "unable to render such service?" Was it "impracticable or uneconomical for the Attorney General to render such service?" Was there a conflict of interest between the OAG and the college?
Now any lawyer could have fallen into this predicament; the impropriety here is separate and independent from Norment's elective office. (This post is purposefully not entitled "The impropriety of Senator Tommy Norment.") But I'd wager that everyone was so preoccupied with avoiding the appearance of graft that they forgot to even consider whether Norment could lawfully do what he is doing. And that's why legislators shouldn't just avoid conflicts of interest; they should avoid undertakings that even hint of the appearance of a conflict of interest.
(Link to Virginian-Pilot via Vivian Paige.)
Update: The Virginian-Pilot has run a new story reporting that then-Attorney General McDonnell's opinion reminded Norment that only the OAG could provide the college legal advice, and Norment disavowed any intention to do so. If that's the case, then the only conflict here is between the college's impression of Norment's job and Norment's own impression--and the college is "back[ing] off" its earlier statement.
I'm still skeptical of any legislator's employment by a state or local government agency. I don't think any legislator should be participating in budget decisions that affect his other employer and I doubt that holding two government jobs is what Jefferson had in mind when he referred to a part-time, citizen legislature. But it doesn't look like Norment's conduct here violated any commonly held sense of propriety after all. That was an open question after the Virginian-Pilot's original story, and I am glad it has been cleared up.
Posted at 08:08 PM in Ethics, Law & Practice, News Commentary, Politics: Virginia | Permalink | Comments (3) | TrackBack (0)