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The Bush administration has settled on the three lawyers it plans to nominate for new seats on D.C. Superior Court’s Family Court, according to several court insiders. The prospective nominations, which have not yet been sent to the Senate, would mark the first new judgeships at the local courthouse in more than 13 years and the first slated specifically for Family Court, which last week celebrated its one-year anniversary. President George W. Bush has indicated he will nominate Jerry Byrd, Judith Macaluso, and J. Michael Ryan. Bush selected the three from nine names sent to him by the D.C. Judicial Nomination Commission. The positions, created by the D.C. Family Court Act of 2001 to improve the handling of child abuse and neglect cases, carry the usual 15-year term, but require the judges to spend their first five years in Family Court. The three would-be nominees are undergoing background checks by the Federal Bureau of Investigation, according to the sources. Byrd, 66, has been a hearing commissioner — now called magistrate judge — on the local court for the past two decades. Macaluso, 58, has also been a magistrate judge in Superior Court since 1997. Before that, she litigated complex environmental tort and contract cases for the Department of Justice’s Civil Division. Ryan, 45, is currently special counsel to the D.C. Public Defender Service. From 1985 until last year, he was a staff attorney with the PDS’s Mental Health Division, located at St. Elizabeths Hospital. Some family law practitioners and others involved in Family Court reform are unhappy with the picks, noting that the White House overlooked other finalists who have more family law experience. “A lot of people were surprised,” says one source involved in Family Court reform. Yet others say it’s a positive change for the White House to nominate magistrate judges, who were rarely elevated to full judgeships in the past. “I think it’s a good thing,” says D.C. family law practitioner Deborah Luxenberg. “I do know that commissioners was a pool they never selected from.” Still, Luxenberg adds that she was “disappointed” that the administration didn’t select a private practitioner. She wrote letters on behalf of Diane Brenneman and Christopher Herrling, two of the finalists not selected. A White House spokesman says it is administration policy not to “confirm, deny, or speculate” on personnel decisions before they are made. UNCONVENTIONAL CHOICES The selections are a break from traditional D.C. judicial appointments. The White House, under any president, is known for tapping government lawyers — usually prosecutors from Main Justice, the U.S. Attorney’s Office, or the D.C. Office of Corporation Counsel. Local magistrate judges rarely make the list. In addition to nominating Byrd and Macaluso, Bush also renominated Magistrate Judge Fern Flanagan Saddler last week for a separate D.C. Superior Court judgeship. Saddler was chosen over two federal prosecutors. While Ryan gets high marks from judges and other criminal justice officials, some D.C. lawyers say it’s unusual for a Republican administration to nominate a public defender — specifically one whose job on occasion is to argue that a criminal defendant is mentally unfit for trial. Byrd may also be one of the oldest lawyers selected for the bench. If confirmed, Byrd could serve only eight years of his 15-year term because D.C. law mandates retirement of active judges at age 74. Macaluso declines comment, saying, “It would be premature to regard myself as having been selected.” Ryan also declines comment. Byrd did not return calls seeking comment. Judge Lee Satterfield, presiding judge of Family Court, says commenting on potential nominees would be inappropriate. Superior Court Chief Judge Rufus King III declines to comment on the potential picks, but says the nine lawyers selected by the nominating commission are “very well-qualified,” with strong and diverse family law backgrounds. According to Patricia Worthy, chairwoman of the nominating commission, 40 lawyers applied for the judgeships and 35 of them were found to be eligible. Last year, about 100 lawyers applied for five magistrate positions in Family Court. The other six applicants whose names were forwarded to the White House are: Brenneman, 56, a longtime family law practitioner who for 10 years was a supervising attorney and professor at Antioch School of Law’s Family Law Clinic; Margaret McKinney, 35, a partner at a small family law firm who co-chairs the D.C. Bar’s Family Law Section; Carol Dalton, 52, former director of the Superior Court office that oversees lawyer appointments in child abuse and neglect cases and a magistrate judge in Family Court since April 2002; Shirley Pamela Gray, 47, former deputy director at the Public Defender Service and a current magistrate judge in Family Court; Herrling, 48, pro bono counsel at D.C.’s Wilmer, Cutler & Pickering; and Juliet McKenna, 32, former executive director of a nonprofit child advocacy organization and a magistrate judge since April 2002. D.C. lawyers say Brenneman and McKinney received a lot of support from the local bar and bench. Brenneman’s 21 years of experience practicing family law in the District was particularly mentioned by supporters. It was the second time the Bush White House passed on picking Brenneman. Brenneman declines comment. “The White House has always been reluctant to pick from the [court-appointed lawyer] pools,” says one defense lawyer, who asked not to be named. “In the attorney hierarchy we certainly don’t have political power.” Byrd, who spent his first four years at the court in the Family Division, is known among lawyers as being “easygoing.” Macaluso, who is described as “mother-hen-like,” has presided over matters in many facets of the Family Court. None of the three are notably controversial, but as is common in Superior Court, some of the magistrate judges’ decisions to release defendants have received scrutiny. Byrd came under fire from police and the media in 1996 when he allowed burglary defendant Mark Weathers to remain on work release despite the fact that Weathers picked up a drug charge while awaiting trial. Weathers was eventually jailed after he was arrested and charged with raping a 19-year-old woman after absconding from a halfway house. In 2001, Byrd upset prosecutors when he allowed two parents charged with felony murder in the starvation death of their 2-month-old child to be released pending trial. Until recently, Macaluso had steered clear of any public controversy. Yet the magistrate judge was in the public spotlight last month after a rape defendant she released on personal recognizance was rearrested for another sexual assault while awaiting trial. Macaluso explained during an October pretrial hearing that the city’s shortage of halfway house beds forced her to release the defendant, given that prosecutors did not ask that he be jailed. Although part of Ryan’s job at the PDS was to argue in court that a defendant was mentally unfit for trial, his name has never been attached to any high-profile cases. Most of his work was representing individuals whom the government or others sought to civilly commit. He is also known at the PDS as the resident sage on DNA evidence and expert testimony in criminal cases. In 2001, he founded a D.C. diversion program for the mentally ill accused of nonviolent crimes. His father was Joseph Ryan Jr., a Superior Court judge known among lawyers as a steadfast conservative with strong GOP ties.

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