Heated debates over federal judicial nominees are typically confined to appointments for the appellate courts, where policy and precedent are set. Selection of district court judges, who handle criminal and civil trials, is usually a quieter affair, experts say.
But Colorado bucked the trend last week when both of the state’s U.S. senators staked out extreme rhetorical positions over the process used to recommend appointments to the president.
And the names of the recommended judges aren’t even public yet.
“There hasn’t been much disagreement over district court nominees (nationally), but that doesn’t mean it does not exist,” said Russell Wheeler, visiting fellow at the Brookings Institution, a Washington D.C.-based think tank.
“The district judges have been less affected by this contentiousness, but there is always going to be some level of controversy about some of them,” Wheeler said. “Especially with two senators from two different parties in the same state and a president in one party and a Senate controlled by another.”
The dispute between Republican Sen. Wayne Allard and Democratic Sen. Ken Salazar, which led to each of them announcing their own methods for selecting candidates, is symbolic of the ongoing politicization of the bench, Wheeler said.
It’s exacerbated by the chances that the White House could change parties, giving the retiring Allard a reason to push hard to get his nominees through the White House and Senate this year and Salazar motivation to slow the process.
Three spots to fill
Two of the upcoming vacancies on the bench will be created by Judges Lewis T. Babcock’s and Walker D. Miller’s intentions to seek senior status, or semi-retirement, by April. A third vacancy occurred when Judge Phillip S. Figa died Jan. 5.
Allard says he tried to reach an agreement with Salazar before he submitted four names to the White House in November. The White House has informed Allard that two of those candidates are close to being nominated.
But Salazar says a bipartisan panel he put together last week will be a more transparent way to select candidates for the three vacancies and any future openings on the bench. He expects to submit candidate names to the White House by March 15.
Allard says that is too late to submit names because the background checks and confirmation process take months to complete and the Senate won’t consider anyone after July 1.
Friday, Chief Judge Edward W. Nottingham said litigants and the public suffer when the court is overwhelmed, and it also affects the morale of judges. If the vacancies are not filled, the caseload for the four active judges will increase by at least 40 percent.
“If this does not get on track in the next several months, there will be no (new) judges on the court until late 2009 or 2010,” he said. “I hope and trust our two senators can work in a bipartisan and cooperative way to get these vacancies filled.”
Babcock and Miller notified the White House in April 2007 that they intended to seek senior status.
Friday, Allard chief of staff Sean Conway said the senator learned of the development in June and began trying to come up with candidates in consultation with Salazar.
Salazar’s spokesman, Cody Wertz, says last fall Salazar tried to form a bipartisan commission with Allard, but Allard did not want to participate.
Leaving politics behind?
Allard says he did not know that Salazar was trying to put the panel together until Thursday, when Salazar’s office issued a news release.
Both sides agree that politics should not impede the selection of federal judges.
“In Sen. Allard’s opinion, it would be a disservice to Colorado if politics played a role in having half the court in Colorado vacant, which will contribute to a judicial crisis,” Conway said. “He is going to do everything he can to deal with Sen. Salazar.”
Salazar spokesman Wertz said his boss wants the process to improve.
“There are several other states with Democratic and Republican senators and they have not had problems and have been able to appoint judges fluidly,” he said. “Colorado can do the same, and I think Coloradans expect that.”
Felisa Cardona: 303-954-1219 or fcardona@denverpost.com
