North Carolina judges getting used to life on 4th Circuit bench

McClatchy NewspapersMay 22, 2011 

RICHMOND, Va. — For years, North Carolina had no judges on the 4th U.S. Circuit Court of Appeals, the final destination for nearly all the state's federal court legal squabbles.

Now, it has three. And a recent morning in a federal courthouse here, the court's two newest judges considered cases involving international torture law, the constitutionality of inter-religious harassment and just how long a traffic cop can chat up a driver before a stop crosses legal boundaries.

Weighty stuff for Judges Albert Diaz and James Wynn Jr., two of North Carolina's highest-profile legal confirmations in recent years. Diaz, of Charlotte, and Wynn, of Raleigh, now sit on a bench just one step below the U.S. Supreme Court, at work after waiting years to see whether they would ever land the gig.

"It's nice to be here finally," said Wynn recently in an interview with the Charlotte Observer and The News & Observer. "I think a lot of people were waiting with us."

He and Diaz were sitting in Diaz's still-undecorated office in the U.S. federal courthouse in Richmond. Carpet samples lay strewn across a table, and the walls were bare. Diaz offered chairs to guests, and then shoved another one across the floor for himself.

"It's a great job," Diaz said, settling in. "Great colleagues. Fascinating cases."

Just this month, Wynn sat on the three-judge panel that heard the high-profile legal challenges to the Affordable Care Act of 2010, President Barack Obama's signature health care legislation. Wynn cannot discuss the case.

Diaz and Wynn have a say in all manner of civil and criminal cases that originate in the U.S. District Courts. Because the U.S. Supreme Court accepts so few appeals, more than 98 percent of all federal cases end at the circuit court level.

Wynn began work last fall; Diaz this spring. They are the most junior judges on the 14-member court. They each have decades of experience, including work on appellate courts. But here, they acknowledge, the variety and depth of legal work has taken them by surprise.

"Um, there's a lot of work here," Diaz said.

"That hits it on the head," Wynn said in agreement.

The judges prep to listen to dozens of legal cases several times a year. That means understanding legal briefs, reading evidence, studying precedents, discussing with law clerks and refining what questions they're going to have for lawyers during oral arguments. The judges live back in their home states; every couple of months they convene in Richmond for days of oral arguments, up to 20 cases a week.

It's different than running your own courtroom as a trial judge, Diaz said.

"You have to convince somebody else that you're correct, or else your opinion doesn't matter," Diaz said. "Whereas when you're a trial court judge, it was your opinion right or wrong, until the appellate court said otherwise."

They're assigned cases by a random computer program — which explains why Wynn, mere months into his tenure, sat on the three-judge panel listening to the high-profile health law challenges this month.

Wynn said his assignment to the top case as a junior member speaks to the court's philosophy: "When you come to the court you're an equal judge; you have just as much authority as anyone on the court."

For years, North Carolina languished without any representation on the 4th Circuit. Its last judge until this decade, Sam J. Ervin III, died in 1999, and for years afterward, presidents weren't able to get their nominees confirmed.

The court covers five states from South Carolina to Maryland, but North Carolina is the largest and submits the most cases for appellate review.

"We're the biggest state in the circuit; we're responsible for a tremendous amount of federal litigation," said Martin Brinkley, president-elect of the N.C. Bar Association and a former law clerk on the 4th U.S. Circuit Court of Appeals. "You would think a state of that importance would have a voice."

In 2003, President George W. Bush appointed Judge Allyson K. Duncan, a former North Carolina Central University law professor and N.C. state utilities commissioner.

But North Carolina wanted more.

"It's about fairness," said Sen. Kay Hagan, D-N.C. When Obama and Hagan were both elected in 2008, she very publicly pledged to fight for two — and possibly three — additional North Carolina judges to the 4th Circuit.

"Look, I'm not saying that they'll consider the cases differently," Hagan said in an interview last week. "I'm saying I want someone from North Carolina to sit on the bench that has a good understanding (of the state). ... You bring North Carolina values, you bring North Carolina expertise."

On Hagan's advisement, Obama nominated Wynn and Diaz in November 2009. Both also had the support of Sen. Richard Burr, R-N.C. Finally, Wynn won confirmation last summer, and Diaz followed in the fall.

"You had the sense it was going to happen at some point," Diaz said. "But there are a lot worse things in life than just waiting. And here we are."

And there he was, earlier this month, alongside two other judges, mostly quiet as he listened to a lawyer argue that an American chemical company ought to be liable for sales of mustard gas components that the Iraqi government used to poison thousands of ethnic Kurds in 1989.

"You listen carefully, consider the arguments that are presented, and then we go back in conference where we discuss the case and figure out what side of the fence we fall on," Diaz said later, speaking generally about the job.

The 4th Circuit has a reputation as a particularly collegial and traditional court, Brinkley said. Among the circuit's quirks: At the end of each argument, no matter how heated, the judges stride down from the bench to shake hands with the attorneys.

"That is unique, I believe, around the country," Brinkley said.

Oral arguments last just 40 minutes per case, and judges spend most of that time questioning lawyers — sometimes sharply.

Down the hall in another courtroom, Wynn sat on another panel, peering down at an attorney for a female worker harassed because of her religious head covering.

Wynn asked whether the employer — a nursing home of another religion — was ever allowed to harangue its staff under a special religious freedom exemption in federal law.

"You can make out the worst case of religious harassment," Wynn said in his deep, sonorous voice. "The question to us as jurists is, is religious harassment in any form exempted?"

He said later: "If that position is true, that religious harassment is exempted, it doesn't matter what the facts are — true?"

Answered the attorney: "(Facts) are pertinent in my scenario."

Despite all appearances, the judges are not, Wynn insisted in a later interview, "interrupting" the lawyers.

"The attorneys don't present evidence, they present legal arguments," Wynn said, speaking generally about attorneys' role at the appellate court. "To the extent those arguments are not clear, and to the extent we need further discussion on issues, we ask questions."

Much of the judicial thinking, though, goes on before the oral arguments, when judges read through briefs and case law.

"Typically when you go in, you have a good solid feeling about your impressions on the case," Wynn said. "It's not the end of it. After argument, you can sometimes change, decide you want to do it differently."

At the end of each day, by tradition of the court, the judges take a vote on each case's outcome. By tradition, the panel's most junior judge gave his opinion first.

"We're always the first to vote, which in and of itself can be challenging because you really have to stake it out there first," Wynn said, laughing. "And the next judge will vote and then the senior judge will vote."

The two health care challenges for which he heard arguments already are decided, though publicly unknown.

Judges are writing opinions, which — again by tradition — usually are released within 75 days of the oral argument.

Politics, both judges say, will have nothing to do with the outcomes despite the current atmosphere in Washington.

"As judges, we're not Democrats or Republicans when we sit up on the court," Diaz said. "We're a judge with an oath to uphold the law and do the best we can. We're going to disagree, that's just the nature of the process."

But those disagreements come, he said, from principled analysis of the law.

"The other branches of government obviously have their own agendas, but this court and I think the federal court in general avoid that," Diaz said.

So now will those other branches of government work on helping North Carolina garner that third seat?

It's doubtful, observers say. The next two open seats on the 4th Circuit are slated for South Carolina and West Virginia.

Hagan said last week that she's satisfied with the state's representation, for now.

"I have to admit I initially thought about (adding three judges)," Hagan said. "Being realistic, I am pleased that we have two new judges."

JUDGE JAMES A. WYNN JR.

Born: 1954 in Robersonville, N.C.

Current hometown: Raleigh

Education: University of North Carolina at Chapel Hill, B.A., 1975; Marquette University Law School, J.D., 1979; University of Virginia Law School, LL.M., 1995

Military experience: U.S. Navy, JAG Corps, captain, 1979-1983, Reserve captain, 1983-2009

Civilian experience: Assistant appellate defender, Office of Appellate Defender, North Carolina, 1983-1984; Private practice, Wilson and Greenville, North Carolina, 1984-1990; Associate judge, North Carolina Court of Appeals, 1990-1998, 1999-2010; Associate justice, Supreme Court of North Carolina, 1998

Path to confirmation: First nominated in 1999 by then-President Bill Clinton, his nomination was blocked by Sen. Jesse Helms. Nominated again in November 2009 by President Barack Obama, confirmed Aug. 5, 2010.

JUDGE ALBERT DIAZ

Born: 1960 in Brooklyn, N.Y.

Current hometown: Charlotte

Education: University of Pennsylvania, Wharton School, B.S., 1983; New York University School of Law, J.D., 1988; Boston University, M.S., 1993

Military experience: Prosecutor, defense counsel and chief review officer, Legal Services Support Section, U.S. Marine Corps, Camp Lejeune, North Carolina, 1988-1991; Appellate government counsel, Office of the Judge Advocate General of the Navy, Washington, D.C., 1991-1995; reserve appellate defense counsel, 1995-2000; Reserve military judge, U.S. Navy-Marine Corps Trial Judiciary, Camp Lejeune, N.C., 2000-2005; Reserve appellate military judge, U.S. Navy-Marine Corps Court of Criminal Appeals, 2005-2006

Civilian experience: Private practice, Charlotte, 1995-2001; Superior court judge, North Carolina Superior Court, 2001-2005; Special superior court judge, North Carolina Business Court, 2005-2010

Path to confirmation: First nominated in November 2009 by President Barack Obama, confirmed Dec. 18, 2010

Source: 4th U.S. Circuit Court of Appeals

McClatchy Newspapers 2011

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