January 24, 2012

Maine lawyer named to appeals court

William Kayatta Jr., a prominent trial attorney, awaits confirmation by the U.S. Senate.

By Jonathan Riskind jriskind@mainetoday.com
Washington Bureau Chief

WASHINGTON — President Obama has nominated William Kayatta Jr. of Cape Elizabeth to fill Maine's seat on the U.S. 1st Circuit Court of Appeals, the White House announced today.

William Kayatta Jr.

Gordon Chibroski / Staff Photographer

Kayatta, 58, is a nationally prominent trial attorney and a partner in the Pierce Atwood law firm in Portland. He was one of two people whom Maine lawmakers recommended to Obama in late May. It took the White House nearly eight months to make the nomination.

If confirmed by the Senate, Kayatta will replace Judge Kermit Lipez, who has served in Maine's seat on the appellate court since 1998. Lipez shifted to "senior," semi-retired status on Dec. 31, but has said he will carry a full caseload until September.

The nation's 12 circuit courts are just a step below the U.S. Supreme Court and are the final stop for most cases appealed from federal district courts, since few cases ever reach the Supreme Court.

Circuit courts consider a wide range of issues, from businesses appealing tax law rulings to employees claiming workplace discrimination to police brutality cases. The 1st Circuit has six full-time judges, the fewest of any circuit court, and covers Maine, Massachusetts, New Hampshire, Rhode Island and Puerto Rico.

Kayatta has lost just two trials in 30 years, according to his biography on Pierce Atwood's website. In addition to his trial work, he has argued 37 cases on appeal, including two before the U.S. Supreme Court, and won 31 of those appeals, according to Pierce Atwood.

Last year, Kayatta was named by the Supreme Court to be the special master overseeing a case involving the state of Kansas suing Nebraska, claiming it was overusing water in the Republican River basin. A special master operates like a trial judge and recommends how the Supreme Court should proceed.

In 2010, Kayatta received the Maine State Bar Association's Howard H. Dana Jr. Award for his work as a pro bono attorney on behalf of disabled Maine children, and for his leadership in the broader effort to increase access to justice for all Maine residents.

In 2000, he defended several manufacturers of the gasoline additive MTBE, including Arco Chemical and Lyondell Chemical.

In that case, a state judge dismissed a request for class-action status for a lawsuit seeking to have the manufacturers pay to test 25,000 wells in Maine for contamination from MTBE, and to clean up any contamination found, The Associated Press reported at the time.

Kayatta graduated from South Portland High School in 1972, from Amherst College in 1976 and from Harvard Law School in 1979.

His nomination drew praise Monday from Maine's two U.S. senators, Republicans Susan Collins and Olympia Snowe. While the nomination process can slow in an election year, support from both home state senators could smooth Kayatta's path to confirmation.

Circuit court nominees have been waiting an average of about 10 months to get Senate confirmation votes, so it isn't certain that Kayatta's nomination will get a vote before November's election, said Carl Tobias, a law professor at the University of Richmond and an expert on judicial nominations.

The Senate confirmation process traditionally grinds to a halt by August of an election year, he said, because the party that's not in the White House is in no rush to confirm judicial nominees just before the election.

He also noted that Senate Republicans were angered by Obama's appointment of Richard Cordray, during Congress' year-end recess, to head the Consumer Financial Protection Bureau. He said that could further slow the nomination process this year.

But Collins' and Snowe's strong support for Kayatta could help persuade Republican leaders in the Democratic-controlled Senate to allow his nomination to move forward before August, Tobias said.

(Continued on page 2)

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