WASHINGTON – When Nancy Torresen is confirmed — barring unforeseen problems — Monday by the Senate for the U.S. District Court in Maine, it will be an example of what passes for a smooth federal judicial nomination process these days.
All the ingredients are present for similar success in replacing Judge Kermit Lipez, who occupies Maine’s sole seat on the U.S. 1st Circuit Court of Appeals, but there are also troubling indications of roadblocks ahead.
Criticism has been heaped on the Senate by liberal advocates charging that the GOP minority refuses to allow even noncontroversial nominations like Torresen’s to be approved promptly. It’s a valid charge, though conservatives note that Democrats weren’t exactly willing to sign off quickly on Bush administration nominees, and tit-for-tat partisan squabbling over judicial nominations stretches back further.
Torresen and several other judicial nominees are expected to be confirmed Monday by unanimous consent, meaning a roll call vote isn’t even required. They, like many of Obama’s nominees, were approved unanimously by the Senate Judiciary Committee. Both of Maine’s senators, Republicans Susan Collins and Olympia Snowe, backed Torresen’s nomination.
Torresen, an assistant U.S. attorney, was cleared by the Judiciary Committee in late May. There’s no good reason for her nomination not to have reached the Senate floor well before Oct. 3.
Torresen’s nomination getting to the Senate floor is a “good sign and is an example of home state senators pushing for action,” said Glenn Sugameli, a staff attorney with Defenders of Wildlife in Washington and head of the Judging the Environment project, which works with progressive groups on federal judicial selection issues. “But it is still absurd, the way these things are inching through.”
The bad news is that an already-slow process could grind to a halt when it comes to replacing Lipez, and the blame may not fall primarily on the Senate or Republicans.
Lipez informed the president in January that he will take senior status on Dec. 31, or earlier if a successor is confirmed before then. Maine’s Democratic Reps. Chellie Pingree and Mike Michaud — who screen candidates and make recommendations to the administration because both senators are Republican — sent two names to Obama in late May: Maine Supreme Judicial Court Justice Jon Levy of Portland and William Kayatta Jr. of Cape Elizabeth, a partner in the Pierce Atwood law firm in Portland.
Since then, there has been nothing out of the White House about a nominee to replace Lipez.
Pingree and Michaud have not heard anything from the White House about their recommendations, and neither has Snowe, her spokesman confirmed last week.
If the White House were actively working on a nomination, it would be logical to check with the home state senators to see if they have objections or suggestions. Snowe and Collins have proved amenable to helping move most judicial nominations through the Senate, both backed Torresen, and both want to see Lipez’s seat filled promptly.
Snowe believes the recommended candidates “have excellent reputations, and she believes it is important this position be filled by an individual from Maine,” said Ken Lundberg, a Snowe spokesman. “Moreover, she urges that the (1st Circuit) vacancy be promptly resolved so that the burden of this unfilled seat does not fall on the courts.”
David Wakelin, president of the Maine State Bar Association, said he will be disappointed if the Obama administration doesn’t make a 1st Circuit nomination this year.
“It is important to the state of Maine that we have full representation on the circuit court, and the longer this goes the less likely it is to get completed before the election,” Wakelin said.
Lipez, 70, of South Portland, a Clinton nominee who was confirmed in 1998, said last week that he still plans to take on a full caseload even after assuming senior status, at least through June. He will cut back after that, though he hasn’t firmed up how much of a workload he will retain.
Lipez said it’s best for the 1st Circuit, which has just six judges to cover Maine, Massachusetts, New Hampshire, Rhode Island and Puerto Rico, to have a new judge confirmed while he still has a full caseload.
“There is no question that the sooner the confirmation takes place the better for everyone involved and for my court,” said Lipez, who has an office in Portland and hears oral arguments in Boston several days a month.
Carl Tobias, a University of Richmond law school professor who is an expert on judicial nominations, said the White House was slow to put forward judicial nominations in 2009, but has picked up the pace in recent months. But traditionally, the confirmation process, particularly over circuit court judges, slows in an election year and then virtually stops by August, he said.
Curt Levey, executive director for the conservative Committee for Justice in Washington, said the Obama administration “has almost ignored” future vacancies like Lipez’s seat.
Still, a noncontroversial nominee backed by home state senators potentially could be confirmed in 2012 because the 1st Circuit is not considered a key circuit where nomination battles normally occur, Levey said.
But it’s too bad that what should be a slam-dunk nomination to promptly fill a seat that’s critical to Maine’s legal community has the potential to become a problem vacancy.
MaineToday Media Washington Bureau Chief Jonathan Riskind can be contacted at 791-6280 or at: [email protected]