Judicial emergency declared on federal bench in Nevada

Two vacancies on the federal bench in Nevada have been declared “judicial emergencies” by the Administrative Office of the U.S. Courts, and more openings are expected within the next year.

President Barack Obama has nominated two people to fill the existing vacancies, but the responsibility for confirming them now lies with the Senate.

Because it’s an election year, some worry that the process will bog down. Others say it already has. For this reason, they are envisioning a scenario in which Nevada’s trial court would be left with just two active judges hearing cases, although the district has seven such positions.

“The brunt of it is going to hit pretty quick unless Congress moves,” U.S. District Judge Kent Dawson said.

Dawson recently informed Obama of his intention to retire from active service on July 9, although he plans to continue hearing cases as a senior judge. Barring confirmations for the two existing nominees before then, that would create a third vacancy on the U.S. District Court bench in Nevada.

And two more U.S. district judges, Larry Hicks and James Mahan, are eligible to take senior status before this time next year.

“Right now, I’d say I’m 90 percent certain that I will,” Hicks said Thursday.

Mahan said he hadn’t decided.

In a telephone interview Friday, U.S. Senate Majority Leader Harry Reid said 20 nominees are awaiting confirmation, and 14 of those nominations have been pending since last year.

“We have faced unprecedented obstructionism,” the Nevada Democrat said. “There’s no other way to say it.”

Reid said 11 of the 20 nominees would fill vacancies deemed judicial emergencies.

“What does this mean? It means that judges are so overloaded that they can’t do their work,” Reid said.

The growing backlog of cases creates an unfair situation for both judges and litigants, the senator said.

“This has to stop. I’ve called on Republicans to stop this obstructionism.”

If they don’t, Reid said he will consider filing cloture petitions to force decisions on some of the nominees. Cloture is a procedure by which the Senate can vote to place a time limit on consideration of a matter, and thereby overcome a filibuster.

In February, for example, Reid filed a cloture petition on the nomination of Adalberto Jordan for a seat on the 11th U.S. Circuit Court of Appeals, ending a four-month filibuster. The Senate confirmed Jordan with a 94-5 vote, filling a vacancy that was labeled a judicial emergency.

Nevada’s two existing vacancies were created last year when Roger Hunt and Philip Pro took senior status. Hunt vacated his seat in May, and Pro vacated his seat at the end of December.

Recently, the Administrative Office of the U.S. Courts declared the two openings “judicial emergencies,” based on the Nevada district’s caseload. The office, which provides a wide range of services to the federal judiciary, has given 34 of the country’s 84 vacancies that designation.

In addition, the U.S. District Court in Nevada responded last week to the administrative office’s 2013 biennial survey of judgeship needs. Lance Wilson, court clerk, said statistics justify two more judgeships for Nevada.

But only Congress has the authority to increase judicial positions. Wilson said Nevada hasn’t been granted a new U.S. District Court judgeship since 2001.

The Leadership Conference on Civil and Humans Rights, based in Washington, D.C., recently organized a panel at UNLV’s Boyd Law School to discuss what it has characterized as a “judicial vacancy crisis.”

“We believe that this discussion needs to happen all around the country,” said Ellen Buchman, the conference’s vice president for field operations.

She said Nevada was targeted to send a message to its two senators, Reid and Republican Dean Heller.

Reid and Heller “both matter to this discussion in their roles in the United States Senate,” Buchman said.

She said the country has “too many cases for not enough judges,” which is resulting in long waits for trials.

“The Senate isn’t doing its job, and we need it to do its job on this issue,” Buchman said.

In an email Friday, Heller spokesman Stewart Bybee said, “Senator Heller works closely with Senator Reid on Nevada’s judicial nominations and will continue to do so.”

As the state’s senior Democrat in Congress, Reid makes recommendations to the president for Nevada’s lifetime judgeships while the president is a member of the same party.

The senator recommended Reno attorney Miranda Du for Hunt’s seat and Clark County District Judge Elissa Cadish for Pro’s seat. Obama nominated Du in August and Cadish in February.

Reid first recommended Las Vegas attorney Ariel Stern for Pro’s seat, but Obama never nominated Stern.

The senator said Obama was willing to proceed with the nomination, but they all agreed to a delay to give Stern time to gain more experience.

Reid acknowledged that Stern, at 36, was an “extremely young” candidate. The senator said he intends to recommend Stern for another judgeship in the immediate future, but he would not say whether he planned to recommend Stern for Dawson’s position.

Both Du and Cadish have been rated by the American Bar Association’s Standing Committee on the Federal Judiciary, which provides its ratings to the president.

The standing committee’s rating of a judicial nominee becomes public after a nomination is made, but a report detailing the investigation is kept confidential. The 15-member committee rates prospective nominees either “well qualified,” “qualified” or “not qualified.”

In Du’s case, a “substantial majority” of the committee rated her “qualified,” but a minority rated her “not qualified.”

The committee unanimously rated Cadish “qualified.”

Reid said Stern wasn’t rated. The senator, who has criticized the American Bar Association in the past, said he has no confidence in the organization. He called its evaluation process “phony,” “flawed,” and a “waste of time.”

The senator said the association places too much emphasis on judicial experience and rarely gives his choices the ratings they deserve.

Reid said his friend David Souter, a retired Supreme Court justice, shares his belief that “we need new blood in the courtroom.”

Benjamin Hill, acting chairman of the American Bar Association’s Standing Committee on the Federal Judiciary, said he was disappointed by Reid’s remarks.

“I’m sorry Senator Reid feels that way,” Hill said. “I have a great deal of respect for him.”

He said the committee “is absolutely not involved in any politics one way or the other” and conducts thorough evaluations of all prospective nominees.

He described the evaluations as peer reviews. Each involves dozens of interviews with people who have familiarity with the prospective nominee’s work, as well as a lengthy interview with the prospective nominee.

“I think it’s a very valuable process,” Hill said.

The committee’s ratings are based on three qualities: competence, integrity and temperament.

Hill said most prospective nominees are not judges, and the committee rarely gives out a “not qualified” rating. A “qualified” rating means the person has the ability to do the job, he said.

“It’s no disgrace,” Hill said. “I mean, that’s a good rating.”

While Nevada’s nominees await confirmation, Hunt and Pro are among five senior judges who continue to help with the district’s caseload.

“Judges that are taking senior status should be able to do so without having to concern themselves about whether Nevadans, and Americans generally, are going to have their cases heard and have justice served,” Buchman said.

She said the Senate needs to make the confirmation of judicial nominees a priority.

“A fully staffed and diverse bench is the guarantee for justice,” she said.

Contact reporter Carri Geer Thevenot at cgeer@reviewjournal.com or 702-384-8710.