As NC federal court vacancies drag on, Tillis and Budd show no sign of interest (2024)

Three open seats on North Carolina’s federal bench have paved the way to diversify the robed group of judges overseeing thousands of cases in U.S. district courts each year. But GOP Sens. Thom Tillis and Ted Budd aren’t focused on filling the state’s vacancies, some of which have sat unaddressed for two years.

There are two openings for U.S. District Court judgeships in North Carolina’s western district. One has been open for two years and the second for one year. Typically, each state’s two United States senators work with the White House to get nominees confirmed by the Senate. But in North Carolina, things have been at a stalemate.

Daniel Keylin, communications director for Tillis, did not answer questions from The Charlotte Observer about why seats for the U.S. District Courts for the Western District and Middle District of North Carolina have remained open. Instead, Tillis and Budd in a joint email statement addressed only a new vacancy on the Fourth Circuit Court of Appeals.

Tillis, in an interview with Politico last month, said he had “no intention of even discussing” filling district court vacancies until the Fourth Circuit question was resolved.

“The advice and consent judicial nominations process was designed by the Founding Fathers and we take the responsibility very seriously,” Tillis and Budd wrote in the statement to the Observer. “While we have not yet been able to reach a consensus choice with the White House for the Fourth Circuit vacancy, we will continue our discussions in good faith to identify and agree upon a nominee.”

The chance to diversify Charlotte’s federal bench has long been bogged down by politics, and in a presidential election year the delays continue.

Tillis, a member of the U.S. Senate Committee on the Judiciary, has made it clear he’ll work across the aisle to fill these positions, said University of Richmond law professor Carl Tobias, who has followed judicial processes for 25 years and unofficially consults with the White House.

But the judicial candidates and the judges awaiting retirement or the lighter caseload that comes with senior status shouldn’t hold their breath, he said. With the clock ticking on this year’s legislative calendar, it’s unlikely any position will be filled before 2025.

The spotlight shifted to filling the Fourth Circuit vacancy when Judge James Wynn Jr. in January announced plans to step down. In North Carolina’s U.S. district courts, several judges had already announced anticipated moves to senior status, which create vacancies and set off the scramble to find a replacement, according to the United States Courts website.

U.S. Middle District Judge Catherine C. Eagles, at the beginning of this year, declared she will be on senior status at the end of December.

In 2022, U.S. District Judge Max Cogburn, a Western District judge out of Asheville, said he will move to senior status as soon as his replacement is named. Another seat in the Western District of North Carolina has already sat open for a year following Charlotte-based U.S. District Judge Bob Conrad’s 2023 move to senior status.

In the Western District, which includes growing urban areas like Charlotte, Asheville, Gastonia and Statesville, only white men have served as trial judges. Of the country’s 94 federal court districts, only three others share that distinction — and none come close to having the population and diversity of North Carolina’s Western District.

Nationally, 70% of federal judges are white and 60% are men. Former prosecutors outnumber public defenders 4 to 1, according to the National Association for Public Defense.

Stalemate on Charlotte’s federal bench

Appointment delays could result in case backlogs, said John Wester, a Charlotte lawyer and former president of the North Carolina Bar Association.

While the district court vacancies haven’t created judicial emergencies and unmanageable caseloads like those in California, Florida and Texas, they have left many wondering why the senators and the White House have been unable to usher in at least one candidate for so long, especially when a man described as one of the “most qualified candidates” in the pool’s history is available.

U.S. Magistrate Judge David Keesler, a Charlotte-based Democrat, has long had bipartisan support, the Observer previously reported. The former Morehead scholar at University of North Carolina at Chapel Hill was a state and federal prosecutor who has served as a federal magistrate for almost 20 years.

“He reflects the highest standard for judges,” Wester said. “We need to get someone this good, because they don’t come along that often.”

Dena King, the U.S. attorney for the Western District of North Carolina, was another front-runner in filling the court’s open seat, the Observer previously reported. If appointed, King would become the first woman and minority to serve as a trial judge on the 150-year-old court. But that pairing leaves North Carolina’s two Republican senators with two Democratic nominees.

Federal Magistrate Judge Susan C. Rodriguez has been floated as a possible contender. The Republican served as a legal policy adviser at the Department of Homeland Security and in 2005 worked in the White House Office of the General Counsel managing judicial nominations and assisting with responses to congressional investigations.

As NC federal court vacancies drag on, Tillis and Budd show no sign of interest (1)

While President Joe Biden must first nominate judicial replacements before senators approve them, congressional recommendations typically roll into the White House. The process is largely veiled.

Tillis told Politico the White House tried to “jam” him on a Fourth Circuit nominee, but Biden’s administration maintained it had asked for Tillis’ input on every vacancy.

The Biden administration previously pressed Senate Democrats to exceed the number of judges appointed by former President Donald Trump, and last month, the Senate did by confirming the 200th federal judge since Biden took office.

“The success Biden has had around the country getting judges nominated and confirmed by the Senate is extraordinary,” said Bill Taylor, a D.C. lawyer who follows N.C. politics. “But it’s equally extraordinary that nothing’s happening in North Carolina.”

NC Reality Check reflects the Charlotte Observer’s commitment to holding those in power to account, shining a light on public issues that affect our local readers and illuminating the stories that set the Charlotte area and North Carolina apart. Have a suggestion for a future story? Email realitycheck@charlotteobserver.com

As NC federal court vacancies drag on, Tillis and Budd show no sign of interest (2024)

FAQs

When might a vacancy occur in a federal court? ›

A vacancy occurs when a judge resigns, retires, takes senior status, or passes away. In the event of a scheduled upcoming vacancy, the president may submit a nomination to the U.S. Senate prior to the vacancy taking effect.

Who is typically chosen to fill vacancies in the federal courts? ›

Vacancies occurring during those terms—due to retirements, deaths, or other departures—are filled through appointment by the Governor. The vast majority of superior court judges initially reach the bench via gubernatorial appointment.

Which federal appellate court district is North Carolina in? ›

North Carolina is a part of the U.S. Court of Appeals for the Fourth Circuit, one of thirteen appellate circuit courts in the United States, which were initially set up by Congress in 1789.

Who nominates someone for a vacancy on the court? ›

The President nominates someone for a vacancy on the Court and the Senate votes to confirm the nominee, which requires a simple majority. In this way, both the Executive and Legislative Branches of the federal government have a voice in the composition of the Supreme Court.

What happens when vacancies happen in the representation from any state? ›

When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.

Which individual appoints judges to vacancies in the federal court system? ›

Who appoints federal judges? Supreme Court justices, court of appeals judges, and district court judges are nominated by the President and confirmed by the United States Senate, as stated in the Constitution.

What would cause a judge to lose their position? ›

Federal judges can only be removed through impeachment by the House of Representatives and conviction in the Senate. Judges and justices serve no fixed term — they serve until their death, retirement, or conviction by the Senate.

What is the retirement salary for a federal judge? ›

Under section 371, a judge who meets the Rule of 80, if he chooses to fully retire (“retire from the office”), “shall, during the remainder of his lifetime, receive an annuity equal to the salary he was receiving at the time he retired.” (For 2023, the salary for appellate judges is $246,600 and for district judges is ...

What is the highest court in North Carolina? ›

North Carolina Supreme Court

The Supreme Court is the state's highest court. This court has a chief justice and six associate justices, elected to eight-year terms, who hear oral arguments in cases appealed from lower courts.

What are the four courts in NC? ›

In North Carolina, there are three federal district courts, a state supreme court, a state court of appeals, and trial courts with both general and subject matter jurisdiction. These courts serve different purposes, which are outlined in the sections below.

How many federal courts does NC have? ›

The federal district courts are the trial courts in the federal court system. North Carolina has three federal district courts, which are the U.S. District Courts for the Eastern, Middle, and Western Districts of North Carolina.

How do vacancies occur on the Supreme Court quizlet? ›

How do vacancies occur on the Supreme Court? If someone dies. What is judicial review? Court can review any local, state, or federal laws and can decide if any law is constitutional.

How are federal judges appointed when a vacancy occurs? ›

Who appoints federal judges? Supreme Court justices, court of appeals judges, and district court judges are nominated by the President and confirmed by the United States Senate, as stated in the Constitution.

How many vacancies are there in the federal judiciary? ›

As of June 1, 2024, the number of federal court vacancies was as follows: Supreme Court: 0 vacancies. Appeals Courts: 1 vacancy. District Courts: 43 vacancies.

Under which circumstances would a federal judge lose or leave his or her job? ›

Federal judges can only be removed through impeachment by the House of Representatives and conviction in the Senate. Judges and Justices serve no fixed term — they serve until their death, retirement, or conviction by the Senate.

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