In the final “lame duck” weeks of the 113th Congress, Day Pitney partner Michael Shea is first on the national list of unconfirmed U.S. District Court nominees — a kind of poster boy for partisan gridlock in Washington, D.C.
The choice of outgoing U.S. Sen. Joseph Lieberman of Connecticut, Shea was nominated in Feburary and won bipartisan approval by a 15-3 vote of the Senate Judiciary Committee in April. He has been waiting the longest of all 15 federal trial judge appointments pending before the full Senate, a logjam that clearly wasn’t going anywhere before the Nov. 6 elections.
Now that it’s certain that Democrats will remain in control of the Senate and White House, there is hope that non-controversial judicial candidates might be approved by the Senate by year’s end. At the same time, the election results may encourage Connecticut’s senators to start the process of finding a replacement for the late U.S. District Judge Mark Kravitz, who died recently of Lou Gehrig’s disease. It appears an advisory committee will reconvene to screen candidates, whose names will eventually be passed to President Barack Obama.
The two judges would be welcome additions to a Connecticut federal bench that is so short-handed that out-of-state judges have been asked to help with cases.
“I am determined to do anything and everything possible to move [Shea's] appointment to confirmation,” said Democratic U.S. Sen. Richard Blumenthal. “I’ve discussed it at length with [Senate Judiciary Committee] Chairman [Patrick] Leahy and the leadership, but there are no guarantees.” Even though Democrats have a majority in the Senate, Republicans have used the threat of filibuster, which requires a supermajority of 60 votes to halt, to obstruct Senate confirmation of Obama’s judicial nominees.
“We’re very hopeful,” said Nardi Riddle, chief of staff for Lieberman, an independent whose retirement from the Senate will become official on Jan. 3. “I’ve notified everybody — the minority and the majority [leaders] — of the importance of this, and I’ve kept people in the administration posted about the vacancies on the Connecticut federal bench.”
Shea was selected to fill the vacancy created by Christopher Droney’s elevation last year to the U.S. Court of Appeals for the Second Circuit. Riddle said the Oct. 1 death of Kravitz “increases the need to quickly go forward. Connecticut is having to reach out nationally to other circuits and districts for help from interim judges. If they would just move these pending positions, we could move forward,” and have Connecticut judges on the bench.
In 10 of the judicial districts with unfilled positions, the Administrative Office of the U.S. Courts has classified the docket backlogs as a “judicial emergency.”
One Washington, D.C., public interest group, The Alliance For Justice, has been tracking unfilled judicial positions for years. In the past year, it says, the situation has become increasingly acute. AFJ Executive Director Nan Aaron last week said that while Congress immediately focused on the “fiscal cliff” of impending tax increases and spending cuts, the nation also faces a “judicial cliff” of unfilled appointments to the bench.
Shea’s appointment was achieved with help from a citizens’ advisory committee initially created by then-Sen. Christopher Dodd in 2009 to review candidates for the Connecticut U.S. Attorney’s position, which was eventually filled by Wiggin and Dana partner David Fein.
The task of vetting potential judicial candidates was later added to the group of lawyers, law professors, judges and non-lawyer members. The committee met in October 2011 to interview 22 candidates for the U.S. District Court seat vacated by the elevation of Droney to the Second Circuit. According to committee members, the Connecticut Bar Association and minority bar groups were encouraged to suggest candidates. The committee broadened the scope of the selection process, and even allowed candidates to self-nominate, filling out extensive paperwork and answering interview questions from the committee over a long weekend of meetings.
The committee made four recommendations: Shea; Nora Dannehy, the deputy state attorney general and a former acting U.S. attorney in Connecticut; Victor Bolden, the corporation counsel for New Haven and a former Wiggin and Dana partner; and Jeffrey Meyer, a former assistant U.S. attorney and Quinnipiac University School of Law professor. All four names were sent to the White House for vetting.
Blumenthal told the Law Tribune he plans to continue using the advisory committee, with at least some of the existing members remaining on board. “It performs an enormously important service in assessing and evaluating the qualifications of potential judges so the merits of their experience and their qualifications are the main determinants,” he said. “I don’t know how senators Dodd and Lieberman made these decisions before, but in my personal experience with these most recent nominations, the citizens’ committee was very important in insuring the best candidates.”
Committee member Stanley Twardy, managing partner in Day Pitney and a former U.S. attorney, declined to express an opinion on the value of the citizens’ committee process. Similarly, Kathleen Nastri, another committee member who is a personal injury lawyer at Bridgeport’s Koskoff, Koskoff & Bieder, said she did not want to interfere with the discretion of Blumenthal and Senator-elect Christopher Murphy.
“I wouldn’t presume to tell these senators how to select their judicial candidates,” said Nastri. But she said the citizens’ committee process is “a very good way to de-politicize the process and make sure there’s at least a preliminary view of the candidates based on merit.”
The senators, Nastri said, “at least took our advice to heart. I think it’s a good way first to make sure there are qualified candidates put up, and second to make sure the process is not simply political appointments.”
In addition to the candidates that joined Shea in last year’s final round — Danehy, Meyer and Bolden — the names of other Connecticut lawyers are being mentioned in influential circles. These include Wiggin and Dana partner Aaron Bayer, who for over a decade served as Blumenthal’s deputy attorney general; Margaret P. “Penny” Mason, of LeClairRyan; Timothy Shearan, who heads the litigation department at Pullman & Comley; William Bloss, of Koskoff, Koskoff & Bieder; Stephen Ecker and James Cowdery, of Hartford’s Cowdery, Ecker & Murphy; and state Rep. Willam Tong, an attorney at Finn, Dixon & Herling.
Caroline Fredrickson is president of the American Constitution Society for Law and Policy, another Washington-based public interest group urging an end to the judicial nominee gridlock. She said the shortage of federal judges nationwide has been the subject of a number of post-election editorials.
“There are people [with cases before the courts who are] really suffering,” Fredrickson said. “There are cases that are not heard, and people having to wait months or years to have their day in court. It’s interrupting peoples’ personal lives and the business proceedings of companies, without judges to hear the cases. Ultimately, it redounds to the detriment of the American people.”•