PERRY/Judicial patronage conflict
Wednesday, March 15, 2017 6:00 PM
U.S. Fifth Circuit Court of Appeals Judge E. Grady Jolly notified President Donald Trump on March 1 that he will vacate his seat as an active judge, effective October 3, his eightieth birthday. Jolly wrote, “This advanced notice is provided in accordance with the custom of allowing you, with the advice and consent of the Senate, ample time to name my successor. I shall continue to sit in service to the court as a Senior Judge, so long as health and will continues.”
Jolly knows a bit about “the advice and consent of the Senate.” His selection tested the tradition of the Senate’s role as a partner with the President in judicial appointments during a new era of Republican power in Mississippi.
It was January 29, 1981. President Ronald Reagan had been inaugurated only days earlier. Mississippi had a Republican in the U.S. Senate and a Republican in the White House for the first time in a century. Republican U.S. Senator Thad Cochran had been elected in 1978, but in 1980 had supported John Connally in the Republican Primary for President. Meanwhile, U.S. Representative Trent Lott had served as Reagan’s Mississippi Chairman and had just been selected by his Republican colleagues as House Minority Whip – the number two Republican in the House of Representatives. It was a Thursday and the biggest position of political patronage for Mississippi Republicans had just come open. U.S. Fifth Circuit Court of Appeals Judge J.P. Coleman announced he would take senior status.
Cochran wanted Jolly. Jolly was a former Assistant U.S. Attorney for the Northern District and had served in the Department of Justice in Washington, D.C. He returned to Mississippi as an attorney in private practice and had been a long time friend to Cochran, including serving as his campaign manager in 1978.
Lott wanted Harry Allen, his friend and former law partner from Gulfport.
Judge Leslie Southwick, currently on the Fifth Circuit Court of Appeals, writes about the conflict in his book, “The Nominee: A Political and Spiritual Journey.” Southwick recalls, “On July 2, both recommendations became public. Cochran met that day with attorney general William French Smith to urge Jolly’s selection. Lott said he had ‘some time ago’ urged Allen’s selection. The administration was also considering other lawyers. Senators had near autonomy in selecting district judges, but the White House also wanted input from Reagan state campaign leaders and state party officials before it selected nominees for circuit courts of appeals.”
Allen demurred to Cochran and withdrew his name. Lott suggested additional names. Cochran stood by Jolly.
Party leadership, under pressure from the White House, brokered a compromise in which U.S. District Judge Walter Nixon would be elevated to the Fifth Circuit, and Jolly could take his place on the District Court. According to Southwick, Cochran did not agree to the deal but did let the White House know he would not oppose Nixon’s selection. Apparently during the compromise negotiations, no one checked with Nixon who publically declined the opportunity but thanked the President for his “magnanimous offer.”
Cochran persisted in his support for Jolly; Lott suggested still more names.
Journalist Curtis Wilkie speculates in two books that Lott’s antagonism against Jolly reached back to Ole Miss rivalries between Jolly’s “Delta planter class” fraternity Phi Delta Theta, and Lott’s own Sigma Nu fraternity. Wilkie also recounts a dinner party where then congressional staffer Lott was the subject of “Jolly’s acerbic wit” including his description of Democratic Congressman Bill Colmer – then Lott’s boss and mentor – as a “troglodyte.”
Southwick quotes a newspaper article in which Mississippi Republican Chairman Mike Retzer said it was simpler, “The main problem is not Jolly, but that Lott wants to be No. 1 here. Power – that’s the name of the game.”
A frustrated White House warned that without consensus, the Court of Appeals seat – which had been held by a Mississippian since 1935 - could be awarded to someone from another state.
The power of the Senate’s Constitutional role of “advice and consent” outweighed political intrigues in the Magnolia State. Senate Judiciary Chairman Strom Thurmond advised the White House they could send his committee all the names they wanted, but none would be confirmed without Cochran’s support.
President Reagan nominated Jolly who was approved unanimously by the Senate. Coleman performed Jolly’s swearing-in.
After Reagan settled on Jolly, both Cochran and Lott were asked about the conflict by the Clarion Ledger. “It’s been overstated,” Cochran said. Lott responded, “I do think the thing has been blown out of its proper perspective. I always prefer to put things in a positive framework.”
There would be a positive framework for Lott. Seven years later Lott replaced John Stennis in the U.S. Senate where he fully embraced and exercised the power of Senate prerogative which Cochran had defended with his Jolly recommendation.
Brian Perry is a partner with Capstone Public Affairs, LLC. Reach him at firstname.lastname@example.org or @CapstonePerry on Twitter.