Standoff Risks Leaving North Carolina US Court at Half Capacity

A rift between the White House and a North Carolina senator over judicial nominees could spell trouble for a Greensboro federal trial court bracing for the retirement this year of half its active bench.

The two upcoming vacancies on the US District Court for the Middle District of North Carolina aren’t likely to be filled soon, due to a disagreement between the White House and Sen. Thom Tillis (R-N.C.) over a separate appellate court vacancy. Approval is needed from both of North Carolina’s two Republican senators to confirm federal district court judges in the state.

Once down to half capacity, the Middle District “will face some substantial challenges,” Chief Judge Catherine Eagles said by email.

She and Judge Loretta Copeland Biggs, both appointees of President Barack Obama, have announced plans to take a form of semi-retirement called senior status at the end of this year, the court confirmed.

Senior status allows judges to continue hearing some cases if they choose while not managing a full caseload. Judges become eligible when they are at least 65, and their combined age and years of time on the bench equals 80.

Eagles said one of the judges taking senior status will continue accepting new cases at a reduced capacity, but didn’t specify whether it was her or Biggs, or clarify the other’s intended workload.

Compounding future challenges for the bench, the court currently has no other senior judges taking on new cases.

The court plans to prioritize criminal cases, as is constitutionally required. For civil cases, Eagles said the court will encourage litigants, “in the short run,” to agree to have their cases heard by a magistrate judge, and have some cases heard by judges visiting from other districts.

Still, caseloads for the two remaining active judges — George W. Bush appointees William Lindsay Osteen Jr. and Thomas D. Schroeder — “will substantially increase,” Eagles said.

“While our efforts will slow down the development of a civil backlog, the longer the vacancies last, the harder it will be,” Eagles said.

Existing Vacancy

The two planned vacancies on the Middle District of North Carolina, which has courthouses in Greensboro, Winston-Salem, and Durham, will make three openings in the North Carolina federal trial courts.

Another spot on the trial court for the Western District of North Carolina, which includes Charlotte and Asheville, has sat vacant for more than 14 months after Judge Robert Conrad, now director of the judiciary’s administrative arm, stepped back from the bench.

The White House hasn’t put forward nominees for the openings.

Filling judicial vacancies during an election year in a state like North Carolina, which has two Republican senators, would already be a challenge for a Democratic president. Under what’s known as the blue slip system, home state senators have veto power over the president’s judicial picks for federal district courts, though not for appeals courts.

But Tillis also has more specific complaints related to the White House’s rejection of his proposals for a separate open seat on the US Court of Appeals for the Fourth Circuit, which covers federal trial courts in North and South Carolina, Virginia, Maryland, and West Virginia.

Tillis said at a Senate Judiciary panel hearing July 31 that he and Sen. Ted Budd (R-N.C.) sent the White House four proposed names for that appellate vacancy, put forth following consideration by a bipartisan committee they established. However, the White House rejected all of them “out of hand,” both for the appellate seat and for a potential district court vacancy, and then sent over alternative names that the senators rejected, he said.

The White House announced the nomination of North Carolina’s Solicitor General Ryan Park for the Fourth Circuit seat in early July, over Tillis’ objections. The senator also said he had notified the White House in mid-April that he had secured the votes to block Park’s nomination on the floor.

“What is the White House thinking?” Tillis asked at the hearing. “I am ashamed to be in this position, and shame on the White House for putting Mr. Park in this position.”

In an interview, Tillis said he will hold up any movement on federal trial court vacancies in his state over the White House’s treatment of his suggestions during the Fourth Circuit nomination process.

“If they can’t negotiate with somebody who has a record of supporting Obama nominees and Biden nominees, and they treat me like this, they need not waste their time on talking about the district vacancies. We’ll deal with that next year,” Tillis said.

A White House spokesperson didn’t provide comment on the state of vacancies in North Carolina.

Potential Turnover

More openings in the state could still be coming.

Schroeder, one of the remaining active judges in the Middle District, has served on the bench since 2008 and turned 65 in May, making him already eligible for senior status. Osteen, the other active judge on that court, will become eligible next year when he turns 65.

Schroeder and Osteen declined to comment through a court representative.

And in North Carolina’s five-seat Western District, which has one vacancy already, two judges are already eligible for senior status, and a third becomes eligible upon turning 65 this year. The Judicial Conference, the judiciary’s policymaking arm, has identified that trial court as one in need of additional judgeships.

A Bloomberg Law analysis of federal district courts with fewer than seven judges, excluding trial courts in US territories, found the Middle District of North Carolina is the only one of those courts where every active judge became, or will become, eligible for senior status this or next year.

Though it isn’t uncommon for multiple members of a court to take senior status at once, “it’s probably unusual that you get such a large percentage of a single court going senior at the same time,” said Paul Grimm, a former Maryland federal judge who now directs the Bolch Judicial Institute at Duke Law School.

Still, Grimm also said many judges who are eligible for senior status don’t elect to take it.

“Sometimes they’re just as effective and efficient, they love it just as much, they don’t want to slow down, so they do it. Sometimes they do it for another reason: they don’t want to let the sitting president have the opportunity to nominate their successor,” Grimm said.

“The key,” he said, is “how many of them who are eligible for senior status, take senior status?”

The legal community in North Carolina is aware of the impending vacancies and potential for turnover on a court whose active bench has been unchanged for the last decade, said Morgan Reece, attorney with Fox Rothschild who practices in North Carolina’s Middle District.

But Reece said she hasn’t heard much concern yet.

“People are aware of it because changeover on any bench at any level of the court, whether it’s federal or state, does shape the way cases are processed, analyzed,” she said, “It’ll be a change, I think, for the practitioners. We’re a very tight knit community.”