By Seung Min Kim
February 2, 2016
On paper, Dax Lopez’s nomination to be a federal judge in Georgia should have been a slam dunk. He's a Latino Republican first appointed by a GOP governor, and he's strongly supported by one of conservative radio's biggest firebrands.
But this is the U.S. Senate, and Lopez’s nomination has been torpedoed despite his conservative bona fides, joining a stack of President Barack Obama's picks that aren't going anywhere.
The culprit this time? Immigration.
Lopez has run afoul of Sen. David Perdue (R-Ga.), who's blocking him from a federal judgeship in the Northern District of Georgia, citing Lopez’s lengthy involvement with a nonpartisan Latino state group that has nonetheless taken liberal stances on immigration policy. Perdue’s home-state colleague Republican Sen. Johnny Isakson, isn’t giving his blessing, either.
But the White House isn’t backing down, declining to withdraw the nomination while moving to ratchet up pressure on Perdue to ease his blockade on Lopez, though Perdue says his decision is final. Had he been confirmed, Lopez would be the first Latino federal judge with a lifetime appointment in the Peach State.
“After being part of the process for selecting Judge Dax Lopez as a candidate, Sen. Perdue has now decided to block his candidacy,” a White House official said in a statement to POLITICO. “Judge Lopez is a highly qualified candidate who enjoys deep support from both sides of the aisle, and we urge Sen. Perdue to drop his opposition and allow Judge Lopez to move forward in the process.”
Perdue, a tea party-backed conservative elected in 2014, is perturbed by Lopez’s involvement with the nonpartisan Georgia Association of Latino Elected Officials. The group’s stances on immigration have led Perdue to question whether Lopez could be an impartial arbiter of the law, and he has refused to return a “blue slip” for Lopez — a sheet of paper that, per longstanding Senate custom, both home-state senators must return for the nomination to proceed.
“I’ve made my decision. I’m not going to reverse that decision,” Perdue said in a recent interview. “I think it’s the right thing to do to protect the integrity of the bench and the nomination process.”
In a year when conservatives are already pressuring Senate Republicans to abandon judicial confirmations until Obama leaves the White House, the clash over Lopez’s nomination illustrates how some nominees can be stymied early in the process.
In January, Heritage Action, the conservative outside group that likes to needle Republican leadership, called on the Senate to stop confirming judges and all other nominees unless they are vital to national security. The GOP-led Senate is poised to confirm at least two more judges by the end of this month, but it remains to be seen whether Majority Leader Mitch McConnell will take up anyone else this year.
“We’re trying to build the case right now that Congress needs to stand up for itself,” Heritage Action CEO Michael Needham said. “We’ve had seven years of the president breaking windows … One way Congress can start fighting for itself is stopping nominations.”
Lopez was among a slate of names recommended by Perdue and Isakson to the White House for the empty Atlanta-based judicial seat, which has been vacant since July 2014 and is now considered a judicial emergency because there are too few judges to handle its caseload. Democrats played a key role in prolonging the vacancy; a liberal revolt against Obama’s previous pick for the seat, Michael Boggs, over the nominee’s history as a state lawmaker on issues such as abortion and the Confederate flag ultimately tanked Boggs’ appointment.
Obama then nominated Lopez last July. The Vanderbilt University graduate had been a state court judge in Georgia since 2010, first chosen to that position by then-Georgia Gov. Sonny Perdue — the current senator’s cousin.
Lopez, 40, also has extensive private sector experience, including stints at Ashe, Rafuse & Hill, LLP (now Polsinelli PC) and Holland & Knight. He started his legal career as a law clerk for the chief judge of the United States District Court for the District of Puerto Rico, from 2001 to 2002.
But Lopez’s involvement as a member of the board of directors of GALEO after he became a sitting state judge was the deal killer, even though he ultimately resigned from the group, according to a September report from the Atlanta Journal Constitution. Georgia sheriffs and other conservatives in the state began to mobilize against Lopez almost immediately after he was nominated.
Most concerning were GALEO’s stances on local law enforcement cooperation with federal immigration officials (the group discouraged it) and Obama’s executive action on immigration that is being challenged by 26 states (the group backed them). Gwinnett County Sheriff Butch Conway, whose county is the second most populous in Georgia, said Lopez’s membership in the group “causes me great concern regarding his ability to serve as an impartial federal district court judge.”
But well-known conservative talk radio host Erick Erickson has been a surprising advocate for Lopez, pushing Perdue and Isakson to allow the nomination to proceed. He warned that if not Lopez, the White House would end up choosing a nominee that was “some whackadoodle liberal.”
“You’re not going to get a better nominee than Dax Lopez. Of all the judicial picks nationwide, he is probably the most free market, most willing to understand that business needs to be able to do business,” Erickson said in January. “He’s going to be the best pick you could hope for from the president of the United States for Georgia.”
But his arguments weren’t enough to persuade Perdue.
Since the decision to halt the nomination, Latino and civil-rights groups have blasted Perdue, with some accusing the senator of blocking Lopez because of his race. Democrats have been similarly critical toward Perdue; Vermont Sen. Patrick Leahy called Perdue’s rationale a “new litmus test [that] sets a dangerous precedent that senators should reject.”
“We find it difficult to see how his association with GALEO can be somehow disqualifying,” said Robert Maldonado, the national president of the Hispanic National Bar Association. “Our only inference is that he's unacceptable to Sen. Perdue because he is a Latino who believes in Latino participatory democracy.”
An aide disputed that Perdue’s objection to Lopez has any racial undertones, citing the senator’s votes to confirm two other Latino judicial nominees just last month — John Michael Vazquez to a federal seat in New Jersey and Luis Restrepo to the Third Circuit Court of Appeals.
Though Isakson indicated that he thinks Lopez deserves a hearing, he has not returned his blue slip to the Judiciary Committee either, according to two Senate aides. An Isakson spokeswoman did not return a request for comment. Without consent from both Isakson and Perdue, the Judiciary Committee won’t proceed with Lopez’s nomination.
“Chairman Grassley is following the long-standing precedent of the Senate, observed by both Democrats and Republicans, that absent sign-off from both of the home-state senators, the nominee does not go forward,” said a spokeswoman for Sen. Chuck Grassley (R-Iowa), who leads the Judiciary Committee.
With his nomination stalled, Lopez seems to be moving on, even as the White House continues to press for his confirmation. He announced that he would run for reelection to his state court seat, saying in a statement that he has “immense pride in the fact that not one of my detractors was able to find issue with any portion of my judicial record” as he was being considered for the federal judgeship.
“I think Judge Lopez is doing a great job in the state. I have nothing to say about that,” Perdue said. “But there were some things that gave me great concern with regard to naming him to a lifetime appointment to a federal bench.”
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