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

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.

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.”

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