Two N.C. judges nominated to 4th Circuit seats

McClatchy NewspapersNovember 4, 2009 

WASHINGTON -- The nomination of two North Carolina judges to the nation's second-highest court could further a leftward push by President Barack Obama in shaping the federal judicial system.

The confirmations also would give the Tar Heel state the appeals court heft sought for years by the state's legal community and its senators in Washington. North Carolina now has just one resident on the 15-judge panel, which hears cases from five mid-Atlantic states.

Judges Jim Wynn of Cary and Albert Diaz of Charlotte were, as expected, nominated by Obama on Wednesday to the 4th U.S. Circuit Court of Appeals. If confirmed, they would bring the number of North Carolina seats to three.

Diaz would be a historic appointment as the first Latino member of the 4th Circuit. He now serves as Special Superior Court Judge for Complex Business Cases in the Mecklenberg County Superior Court.

Wynn, who sits on the N.C. Court of Appeals, is entering his second confirmation process. President Bill Clinton nominated Wynn in 1999 to the same court, but that was blocked by U.S. Sen. Jesse Helms.

Both were rated well-qualified by the American Bar Association. And both are experienced civil judges who also served years in the military justice system.

Diaz worked in several legal roles during his Navy career. Wynn remains a captain in the U.S. Navy Reserve and is a certified military trial judge.

"They've spent a lifetime training for these positions," said Burley Mitchell, a Democrat and former chief justice of the N.C. Supreme Court, said of Wednesday's nominations.

Wynn, an African-American, and Diaz, a Latino, would add to the court's diversity.

But they also might help tilt what has been known as the nation's most conservative appeals court, legal experts say.

Along with Wynn and Diaz, the Senate is considering two other nominees to the appeals court from Virginia and Maryland. The confirmation of all four Obama nominees could impact the 4th Circuit's makeup, both in diversity and ideology.

"For many years what was one of the most conservative circuits in the country would move most substantially in the liberal direction," said Arthur Hellman, a law professor and appellate court expert at the University of Pittsburgh.

"That assumes the nominees would be voting generally on the liberal side," he added.

Many observers said it's too soon to tell what researchers might unearth in Wynn's and Diaz's judicial decisions that could become fodder for their confirmations.

But Obama seems to be taking advantage of the fact that his predecessor had trouble getting 4th Circuit nominees through Democratic obstruction, said Curt Levey, executive director of the conservative Committee for Justice, a Washington judicial advocacy group.

"He sees an opportunity to shift what was a conservative circuit to be now a quite liberal circuit," Levey said.

Levey has urged Republican senators to keep in mind the past treatment of Bush nominees as they now consider Diaz and Wynn.

"I will predict ... that life will not be made easy for these two nominees," Levey said.

For Wynn and Diaz, the next step would be confirmation hearings before the Senate Judiciary Committee. Judiciary Committee Chairman Patrick Leahy's office did not return a call for comment, but the Vermont Democrat has pledged in the past to move quickly on Obama's nominees.

Hellman said the men can expect the usual questions on issues such as abortion rights, criminal law and environmental regulation.

But the 4th Circuit in particular also has heard a lot of terrorism cases, Hellman said, so Wynn and Diaz should anticipate questions about terrorism and the government's role in prosecuting wars.

Their military backgrounds might ease the concerns of some GOP senators about their understanding of national security, he said.

"I would expect when someone who has served in the military says, 'Senator, I'm not going to put American lives at risk unnecessarily,' they speak with credibility," Hellman said.

Appeals courts play a critical role in the judiciary. The U.S. Supreme Court takes so few cases among those that are petitioned that the appeals courts end up as the final decision-makers in nearly all of the cases that come before them.

North Carolina has traditionally had two seats on the 15-member panel; one is currently vacant. If both Wynn and Diaz are confirmed, the state would have three members. South Carolina would lose one of its four seats in exchange.

Although states within the circuit grumble about whether they get their fair share of judges on the 15-member court, the judges' home addresses have little impact.

"It doesn't matter as far as 99 percent of the issues," Mitchell said, though he supports North Carolina getting proportional representation.

For years, North Carolina has had just one member on the 4th Circuit: Allyson Duncan of Durham, nominated by President George W. Bush in 2003.

Another Bush nominee, U.S. District Court Judge Terrence Boyle of Edenton, languished for years before the White House eventually withdrew his name for the remaining vacant N.C. seat. That seat has been open since the early 1990s.

Now, with two nominees, North Carolina would get what is presently a South Carolina seat, said Carl Tobias, a law professor at the University of Richmond who studies the 4th Circuit.

By tradition, an open seat is replaced by a judge from the same jurisdiction, he said. But South Carolina had four seats in the past because former Sen. Strom Thurmond was head of the Judiciary Committee.

"It was a historic accident that South Carolina had four," Tobias said. "North Carolina is the biggest state in population. So they would make a strong case that they ought to have more than two judges on the court."

Sen. Kay Hagan, a Greensboro Democrat, lobbied hard to increase the state's representation on the court.

In a statement Wednesday, she called the two nominations "a victory for North Carolina."

"For too long partisan bickering and obstructionism on both sides of the aisle have unnecessarily derailed the nominations of qualified North Carolinians," Hagan said. She called Wynn and Diaz "extremely qualified judges."

And much depends on the views of Republican Sen. Richard Burr of Winston-Salem.

Opposition from him could potentially scuttle the confirmations of either Diaz or Wynn, Hellman said.

In a statement Wednesday, Burr praised the judges' experience, their distinguished backgrounds and their military service. Burr said he hoped to work with them during the confirmation process.

He didn't, however, say how he would cast his vote.

McClatchy Newspapers 2009

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