More Political Chaos Keeps Federal Bench Unable to Deal with Justice

U.S. Senate Blocks Green Nomination for Western District
The New York Law Journal by John Caher  -  December 23, 2011

A long vacant federal judgeship in the Western District will apparently remain vacant for the time being as Congressional Republicans have blocked the nomination of Monroe County District Attorney Michael C. Green.  Mr. Green yesterday said he was advised by the White House that his nomination has been returned by the Senate and will not be resubmitted. The White House confirmed that the nomination is dead.  "I appreciate the fact that the president nominated me," Mr. Green said. "Certainly, I was frustrated that after three years I couldn't even get the Senate to vote on it."  Mr. Green, 50, a prosecutor in Rochester for the past 25 years and the district attorney for eight years, was recommended by Democratic Senator Charles Schumer for the vacancy created in March 2009 when Judge David Larimer took senior status. Mr. Green did not seek re-election this year as the Senate Judiciary Committee advanced his nomination on June 16.  White House spokesman Brandon Lepow confirmed that Mr. Green's nomination was returned to President Barack Obama by the Senate and will not be resubmitted. Mr. Lepow would not comment on why the nomination was blocked, but Mr. Schumer said in a statement that "partisan politics stood in the way."  A spokeswoman for Senator Charles Grassley, an Iowa Republican on the Judiciary Committee, yesterday said problems surfaced during a background investigation of Mr. Green.  "Members had concerns with his background," said spokeswoman Beth Levine. "Mr. Green knows what the committee's concerns were. There were questions that arose during the background investigation. It turns out the White House isn't re-nominating so it sounds like they had concerns as well."  Mr. Green disputed Ms. Levine's statement and said the background investigation was completed before he went to, and was approved 17-1 by the Judiciary Committee.  "All of the background information was before the Judiciary Committee and I got thrown a 17-1 vote, with the only 'no' vote coming from [Republican] Senator [Mike] Lee of Utah, who publicly issued a statement saying he had concerns because I had never done federal civil work," Mr. Green said. "It is unbelievable [that Mr. Grassley's office] would say that."  Mr. Green said he was not given details as to why his nomination was derailed, but suggested it had to do with local politics. He said Mr. Schumer's office told him that someone in the Rochester area was attempting to undermine the nomination and got the ear of Mr. Grassley.  "The only questions Grassley raised were about a local political race, a local D.A.'s race," Mr. Green said. "Why he was getting involved in that, I have no idea."

Stephen Gillers, a professor at New York University School of Law and an ethics expert, said the U.S. Department of Justice contacted him after receiving an anonymous letter alleging that Mr. Green had violated ethical standards by endorsing his first assistant as his successor in the district attorney's office while the nomination was pending. Mr. Gillers said he had never heard of Mr. Green until receiving that request.  "Green's nomination got derailed because someone wrote an anonymous letter after he was confirmed [by the committee] but before the Senate voted," Mr. Gillers said in an interview. "Justice asked me if it was a legitimate criticism."  Mr. Gillers said it was unclear where the anonymous letter came from or the motivation behind it. He said he reviewed the letter and a subsequent letter Mr. Grassley sent to Mr. Green raising questions about his ethics.  "There are a lot of factors that go into these things," Mr. Gillers said. "It may have been intended to embarrass the president. It may have been political pay-back. And it may have been an erroneous belief that he did violate ethics. My job was to speak to the ethical issues, and I did."  In a Dec. 2 letter to Mr. Grassley and Judiciary Committee Chairman Patrick Leahy, D-Vermont, Mr. Gillers said Mr. Green did nothing wrong in endorsing his assistant, Sandra Doorley.  "Mr. Green endorsed one candidate only, had the support of [a] State Bar opinion that doing so was appropriate, indeed of value, and had a non-partisan basis for his endorsement," Mr. Gillers said in the letter. "His decision was ethical and compliant with the New York Rules of Professional Conduct and the Code of Conduct for U.S. Judges."  Mr. Gillers said in the letter that there is "no basis to conclude" that Mr. Green endorsed Ms. Doorley to further his chances of Senate confirmation.  Additionally, an issue arose locally when Mr. Green kept on the payroll for the remainder of the year five prosecutors Ms. Doorley intended to fire. It is unclear why that would be an issue, but Mr. Green said it was raised by his opponents in Congress.  Mr. Green, a former Republican who switched parties to run for district attorney when his own party would not support his nomination, is highly regarded and his nomination was strongly endorsed by local attorneys.  In an interview last summer with the Law Journal, Monroe County Public Defender Timothy P. Donaher, whose office butted heads with Mr. Green's office, repeatedly praised the prosecutor.  "Mike, before he became D.A., was known as one of the most prepared trial prosecutors that office had ever seen," Mr. Donaher said. "I don't think anyone works harder. From a defense perspective, he is a thorough, aggressive prosecutor, but a fair guy who is always willing to listen."  A local community leader said Mr. Green was instrumental in establishing a program in which drug forfeiture monies are used to support an educational/athletic/mentoring program at the local Boys and Girls Club.  "Mike is incredibly committed to this community," said I.C. Shah, former chairman of the Boys and Girls Club. "He is intelligent. He is passionate. He knows the law. It is very rare to find a combination of passion, commitment, knowledge and dedication, and he has all four."  Mr. Green's first boss, Rochester attorney James Morris of Morris & Morris, where he began his legal career, said Mr. Green "is a good lawyer. But he has one characteristic above all. He is scrupulously honest and highly ethical."  The only open opposition to Mr. Green's appointment, at least until the issues arose in the district attorney's race, came from a minority of the American Bar Association vetting committee, which expressed concern over his lack of experience in civil practice.  Mr. Green said he has not decided what he will do when his tenure as district attorney ends next week and is considering his options.  "It is time to look forward," Mr. Green said. "The fact that this opportunity closes just means others become open. I am excited about those opportunities."  Mr. Obama has suffered a number of setbacks in his efforts to fill judicial vacancies. Currently, 16 nominees, all of whom were approved unanimously by the Judiciary Committee, are awaiting Senate action.  Earlier this month, Senate Republicans blocked the nomination of Caitlin J. Halligan for the U.S. Court of Appeals for the District of Columbia Circuit. Ms. Halligan, a former New York solicitor general, is general counsel for the Manhattan District Attorney's Office.  John Caher can be contacted at jcaher@alm.com.