History shows Cochran will guide choice of Jolly’s 5th Circuit successor

Published 10:26 am Wednesday, March 15, 2017

Longtime U.S. 5th Circuit Court of Appeals Judge E. Grady Jolly recently informed President Donald Trump of his intent to step down from the federal bench on Jolly’s 80th birthday in October — giving Trump his first judicial appointment in Mississippi.

Jolly has certainly earned his retirement. The Winston County native has enjoyed an unblemished 35-year federal judicial career since succeeding the late Judge James Plemon Coleman on the 5th Circuit bench in 1982. Jolly’s beloved wife, the former journalist and congressional staffer Bettye Carol Simmons Jolly, died three years ago.

Jolly’s decision to step down sets in motion the same sort of judicial patronage process that was in place back in 1981 when Jolly was first approached about the judgeship by U.S. Sen. Thad Cochran after Coleman announced his retirement decision on January 29, 1981.

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The Constitution gives the U.S. Senate “advice and consent” over the judicial nominations of the President. But there is also the procedural custom of senatorial courtesy, whereby senators from the sitting President’s party strongly recommend a nomination or kill it by objecting to it. While not constitutionally mandated, that custom is usually enforced by the senators through their absolute control of the confirmation process.

In 1981 in the early days of the Republican administration of President Ronald Reagan, Cochran was the junior senator from Mississippi and the only GOP senator from the state. Cochran made it clear his nominee to succeed Coleman would be Jolly.

Remember, Cochran was in 1981 the first GOP senator from Mississippi since 1881, when African American Republican Blanche K. Bruce served in the Senate from Mississippi during Reconstruction.

At the same time in 1981, then-U.S. Rep. Trent Lott, R-Pascagoula, was serving as House Minority Whip, which ranked him second in power only to House Minority Leader Bob Michel of Illinois. Lott served as Reagan’s state chairman in Mississippi in the 1980 campaign.

Lott sought to parlay his leadership post in the Reagan campaign into influencing the patronage decision in choosing a replacement for Coleman on the 5th Circuit Court bench. Lott first backed Gulfport Harry R. Allen.

Thus began an 18-month battle over federal judicial patronage between Cochran, the quiet and cerebral senator, and the more flamboyant Lott in the House. The Associated Press wrote about it in Sept., 1981, but political rumor mills had churned over the Mississippi GOP power struggle for months prior to the news reports.

Allen eventually withdrew, citing concerns over party unity. Lott came back to the White House with five more names — James Arden Barnett of Jackson, Hunter Gholson of Columbus, Ernest Graves of Laurel, Frank Montague, Jr., of Laurel, and George E. Morse of Gulfport.

The patronage battle raged until then-White House Chief of Staff James Baker privately warned state GOP officials that the seat on the 5th Circuit bench might go to another state because Mississippi Republicans couldn’t agree. Then, order was restored.

A 1982 New York Times account of the fight offered this insight: “Senate leaders have made it clear that they will not allow a House member to dictate a choice. Sen. Strom Thurmond (R-S.C.), chairman of the Senate Judiciary Committee, has passed the word that unless Cochran approves the choice, the judge will not make it through the committee.”

FYI, that senatorial courtesy “rule” was the same one used by Mississippi Democratic U.S. Sen. James Eastland when he chaired the Senate Judiciary Committee from 1956 to 1978, when Cochran succeeded him in the Senate.

President Trump’s administration has been anything but traditional and some suggest that his judicial appointment process may likewise eschew tradition. But is the U.S. Senate likely to surrender either their constitutional “advice and consent” or their senatorial courtesies on judicial appointments to Trump? No. Neither will Cochran and fellow Mississippi GOP U.S. Sen. Roger Wicker.

Clearly, there will be many Mississippi Trump supporters who believe they will exert great influence over who get the judicial nomination. But history suggests that we can expect Jolly’s successor, as was Jolly in 1982, to be an appointee approved by Sen. Cochran.

Sid Salter is a syndicated columnist. Contact him at sidsalter@sidsalter.com.