Tuesday, March 11, 2014
BY JONATHAN RISKIND
MaineToday Media Washington Bureau Chief
WASHINGTON -- A blow to Maine's legal prestige and delayed justice in a key federal court.
Those are potential consequences of President Barack Obama's failure this year to nominate a replacement for Judge Kermit Lipez, who occupies Maine's sole seat on the 1st Circuit Court of Appeals.
Lipez, who has served on the court since 1998, told Obama in January that he will step aside from full-time duties as of Dec. 31 and shift to "senior," semi-retired status.
Now, even a nomination made by January or February could be snared by election-year politics, and the confirmation of a replacement for Lipez could be pushed back well into 2013, especially if Obama does not win re-election.
Lipez, 70, said last week that he will carry a full caseload as a senior status judge -- but only until September, when he plans to scale back, initially to a three-quarters workload.
The nation's 12 circuit courts are just a step below the U.S. Supreme Court and the final stop for most cases appealed from federal district courts, since few cases ever reach the Supreme Court.
The 1st Circuit has just six full-time judges, the fewest of any circuit court, and covers Maine, Massachusetts, New Hampshire, Rhode Island and Puerto Rico.
A wide range of issues can go to a circuit court, from a business appealing a tax law ruling to an employee claiming workplace discrimination to a police brutality case.
Philip Coffin, who practices federal law in Portland, said that if a new judge is not seated when Lipez begins to reduce his caseload, "It would slow down justice. The system is slow enough as it is. To slow it down further can cost money, it can cost time, it can cause emotional distress because (parties to cases) want to get answers to a question."
In an interview via email, Lipez said he decided to keep a full caseload into next year because it isn't unusual to have at least a short gap between the time a judge takes senior status and the confirmation of a replacement.
"But if my successor is not in place by the time I reduce my caseload, there will be a significant effect on the work of the court," Lipez said. "Any prolonged vacancy affects the ability of the court to process its cases expeditiously."
The 1st Circuit Court handles fewer cases than larger circuits -- 1,265 were pending as of March 31, compared with nearly 14,000 for the California-based 9th Circuit Court, for instance.
The 1st Circuit is ranked fourth among the circuit courts in the speedy dispensation of justice, with the average case taking nine months from the time of initial filing, said Carl Tobias, a University of Richmond Law School professor and an expert on judicial nominations and the federal court system.
"But over time, having a half-time person will take a toll and slow things down," Tobias said.
A vacancy in Maine's seat would be a blow to the prestige of the state's legal community, and to the perception that the state's perspective is represented on the court, lawyers say.
"It is a very important seat for Maine and it is very important to have a Maine judge on that court," said Benjamin Gideon, a Portland attorney and a former clerk to Lipez.
Maine's U.S. Reps. Chellie Pingree and Mike Michaud sent two names to Obama in May for the pending vacancy: Maine Supreme Judicial Court Justice Jon Levy of Portland and William Kayatta Jr. of Cape Elizabeth, a partner in the Pierce Atwood law firm in Portland.
Both "are fabulous choices," said Karen Frink Wolf, a Portland attorney who is the Maine State Bar Association's federal practice section chair. "To have it bogged down is disappointing."
Caroline Fredrickson, executive director for the liberal American Constitution Society advocacy group in Washington, said her sources in the Obama administration say a nominee for the seat could be named by February. She hopes a nominee could be confirmed in the spring.
But in an election year, the judicial confirmation process generally begins to slow early on, then grinds to a halt by August. The average circuit court nominee has been taking about 10 months to get a Senate confirmation vote, Tobias said.
So even for a circuit court nominee who is named early next year, "It begins to get pretty dicey getting through the process" before November's election, Tobias said.
An Obama administration official would not say when the White House plans to name a nominee for Lipez's seat, and indicated one reason it hasn't happened is that there is no "judicial emergency" from an existing vacancy.
But Tobias called the White House's explanation weak, saying Lipez went out of his way to give advance notice so there wouldn't be a vacancy when he reduces his caseload.
Jonathan Riskind -- 791-6280