Three federal judges, all Republican appointees, have been chosen to hear the appeals of former Alabama Governor Don Siegelman and his codefendant, HealthSouth founder Richard Scrushy.
The three-judge panel from the Eleventh Circuit Court of Appeals will include Chief Judge J.L. Edmondson, Senior Judge James C. Hill, and Judge Gerald Bard Tjoflat. Oral arguments are set for December 9 in Atlanta.
President Gerald Ford appointed Hill and Tjoflat to the federal bench. President Ronald Reagan appointed Edmondson.
All three judges have experience in handling politically charged cases. But some of them have been involved in controversial rulings that are likely to give many Siegelman supporters pause.
Siegelman is a Democrat who held four statewide offices in Alabama--secretary of state, attorney general, lieutenant governor, and governor. A federal jury in 2006 convicted Siegelman and Scrushy of federal-funds bribery, conspiracy, and honest-services mail fraud.
Tjoflat was one of four Republican appointees who dissented in an 8-4 decision that sided with Al Gore's request to continue with manual recounts in Florida as part of the Bush v. Gore case in December 2000. Edmondson was one of three Republican appointees who sided with the majority in that case.
Tjoflat was part of a three-judge panel that weighed in on the 1994 election contest for Alabama Supreme Court chief justice between Republican Perry Hooper Sr. and Democrat Sonny Hornsby. The panel upheld a lower-court ruling that threw out 1,700 unwitnessed absentee ballots, making Hooper the winner.
Karl Rove was intimately involved in the Hooper/Hornsby race, and his efforts to get Hooper elected under controversial circumstances signaled a sea change in Alabama courts, which once were all Democratic and now lean way to the right.
Hill was part of a 2000 panel that allowed student-led prayer at Alabama's public schools.
Siegelman lawyer Vince Kilborn said he has no concerns about the makeup of the panel. But the story about the three-judge panel, and the circumstances surrounding the Siegelman case, raises some important questions:
* The central argument of the Siegelman/Scrushy appeal is that the prosecution was politically motivated, that Republicans in the Bush administration were out to get Alabama's most successful Democrat. Given that, isn't it curious that the three-judge panel consists of all Republican appointees? I'm not an expert on the procedures for picking appellate panels, but for the sake of appearances, wouldn't it have made sense to make sure the panel was politically balanced--at least a little bit, say with maybe one Democratic appointee?
* Isn't it curious that this story was released in the Thanksgiving Day issue of The Birmingham News and was buried on page 2B?
* I have more than 30 years of experience as a journalist, and I'm not sure I buy Kilborn's statement that he isn't concerned about the makeup of the panel. For public consumption, he has to say the panel looks stellar and fair. But I find it hard to believe that News reporters Kim Chandler and Mary Orndorff would, on their own, go to the trouble of looking up controversial decisions these judges have been involved in. It looks to me like someone fed them that information, and it probably was someone on the Siegelman/Scrushy team. Why would someone on the Siegelman/Scrushy side feed that information to the reporters? Because they think the makeup of this panel stinks to high heaven--but they feel they can't say that publicly.
* What was my reaction upon hearing about this panel of three Republicans? I immediately thought of William Pryor, former attorney general of Alabama who started investigating Siegelman before the Democrat's fanny had barely hit the governor's chair. Pryor now serves on the Eleventh Circuit Court of Appeals, as a George W. Bush appointee, and I couldn't help but wonder: "Why isn't Bill Pryor on this panel? His presence is about the only thing that could make this panel worse. Did Pryor have a round of golf scheduled for that day?"
* That reaction was from my rational side. What was my paranoid, irrational side thinking? That this is a last gasp by the corrupt Bush administration to subvert justice one more time before being shown the door. And once again, the target is Don Siegelman. What better way to protect Karl Rove from future inquiries than to have Siegelman's conviction upheld on appeal? And what better way to do that than to have an all-Republican panel hear it?
We all know that federal judges are, in theory, insulated from political considerations in their decisions. But anyone who has studied the machinations of U.S. Judge Mark Fuller in the Siegelman case, or those of U.S. Judge Henry Wingate in the Paul Minor case, knows that quaint theory no longer holds in Karl Rove's America.
Rove and his acolytes have found receptive audiences in U.S. attorneys offices and federal courthouses around the Deep South. And don't think for a moment that appellate courts are any more honest than trial courts. This all-Republican panel is every bit as capable of acting corruptly as was Fuller, the trial judge.
As a progressive who is concerned about justice in the South, I am alarmed about the selection of this panel for the Siegelman appeal. And I think the Siegelman legal team is alarmed, too.