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The waiting game

I think it is probably a disincentive for people to apply for appointment when it is quite possible that those who are in private practice or the private sector may find themselves in a state of limbo that adversely affects their ability to continue earning as they were at the moment of their nomination.” - Hon. Charles Clevert, chief judge, Eastern District Court

Four of the five Article III judges in the U.S. District Court for the Eastern District of Wisconsin in Milwaukee will be eligible for senior status by fall 2012.

That doesn’t mean they’re going to retire. Nor does it mean there will be a long line of candidates waiting to replace them.

In many instances, it simply takes too long and potentially costs too much in lost clients to wait for the federal appointment.

“It’s a huge commitment to do it right,” said Madison criminal defense lawyer Stephen Meyer. “It’s a lot to add on top of practice.”

Meyer has firsthand experience. He was one of four finalists for a seat in the Western District Court vacated by Judge John Shabaz in 2009.

Meyer said it is hard to quantify how much work he lost while waiting to see if he would get the nomination from the White House. But, he said, it’s clear the time he invested filling out applications, soliciting endorsements from judges and prosecutors, and interviewing with the Federal Nominating Committee and legislators diverted his attention from clients.

The nomination eventually went to former Wisconsin Supreme Court Justice Louis Butler, but the U.S. Senate has yet to confirm it.

“I think it is probably a disincentive for people to apply for appointment when it is quite possible that those who are in private practice or the private sector may find themselves in a state of limbo that adversely affects their ability to continue earning as they were at the moment of their nomination,” said Chief Judge Charles Clevert of the Eastern District Court.

Clevert will be eligible for senior status in fall 2012, when he turns 65. He’ll join judges Rudolph Randa, 72; Lynn Adelman, 71; and J.P. Stadtmueller, 69, all of whom could apply for senior status anytime. Their Article III designation means they were appointed by the president to their positions for life.

According to the United States Courts website, there are 92 federal district court and federal appellate court vacancies and 54 pending nominations. Thirty of the vacancies date back to at least 2009, with one opening on the Ninth Circuit Court of Appeals that is seven years old.

Judges generally submit their applications for senior status to the president one year in advance to let courts prepare for them handling a lighter caseload or taking full retirement.

Given the time it’s taking to replace judges, Marquette University Law School Professor Rick Esenberg said, it’s unlikely anybody on the bench would have a successor appointed prior to the next election in November 2012.

“It’s gotten very problematic,” he said. “Right now, it’s probably almost too late to get somebody through, and that’s unfortunate.”

That means the current stable of judges likely will remain intact at least through the next election.

At this point, only Clevert has hinted that semi-retirement is an attraction, although Randa applied for senior status in 2007 but rescinded the request after there was no confirmation of a replacement prior to the end of President George W. Bush’s term.

“Clearly, we know that had the process worked more rapidly,” Esenberg said, “Judge Randa would be on senior status like he said he was going to.”

Randa could not be reached for comment.

If the process moved more quickly, it would be less of a gamble for the applicants, said Kendall Harrison, an attorney for Godfrey & Kahn SC who also sought Shabaz’s seat.

Butler

“If your name is out there and you have an active practice,” he said, “clients may look and say, ‘Is this person going to be on the federal bench now or be able to work on my cases?’”

Harrison, a commercial litigator, was one of 16 initial applicants for the seat and didn’t get far enough along in the process to feel an adverse effect on his practice.

But had he advanced, Harrison said, it is something he would have had to endure.

“If you are actually the person selected and named by the president but have to sit there forever, it’s difficult to take cases,” he said, “because you don’t know how long you will be around and at that point, clients will have a legitimate concern about working with you.”


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