Process and politics: 2 federal judgeships in Montana opening soon

2012-12-01T00:15:00Z 2014-08-25T08:18:54Z Process and politics: 2 federal judgeships in Montana opening soonBy CLAIR JOHNSON cjohnson@billingsgazette.com The Billings Gazette

The move to senior status of two of Montana's three federal district judges virtually ensures that the Obama administration will get to appoint their replacements, probably next year.

Chief U.S. District Judge Richard Cebull in Billings announced in October that he will go on senior status in March 2013.

On Friday, the move to senior status for U.S. District Judge Sam Haddon in Great Falls was announced on the webpage of the 9th U.S. Circuit Court of Appeals. 

Senior status is a form of semi-retirement for federal judges who continue to hear cases with a reduced workload.

Haddon, 75, could not be reached Friday for comment.  The 9th Circuit page said he would go on senior status by the end of this year.

That would mean that when Cebull, 68, takes senior status in March, it will leave U.S. District Judge Dana Christensen of Missoula, who took his post only last December, as Montana's only active federal district judge.

How soon it will be before new judges to replace Cebull and Haddon take the bench is uncertain. The selection process for the lifetime appointment is thorough, and a nominee could get stuck in a logjam of judicial nominees awaiting U.S. Senate confirmation.

Carl Tobias, a law professor at the University of Richmond and a former University of Montana law professor, said it may be late spring before there are nominees.

"There is fair amount of stuff that has to happen," he said.

Cebull and Haddon semi-retiring within months of each other puts more pressure on the selection process, he said.

"I don't think it's an emergency, but you want to move expeditiously to have active judges. I think the time for dawdling is over," Tobias said.

Christensen will have help from Cebull, Haddon and Montana's three other senior judges, Don Molloy in Missoula, Jack Shanstrom of Billings and Charles Lovell of Helena, Tobias said.

The appointment process for the federal bench is partly political.

The president nominates a candidate for Senate confirmation after conferring with the senior senator — in this case, Democrat Max Baucus — from the state in which the judge will serve.

Baucus will take steps to submit recommendations "at the appropriate time,” said Kathy Weber, a Baucus spokeswoman.

Tobias and Montana lawyers who participated in the selection process for Christensen expect Baucus to do what he has done in past nominations — appoint an advisory committee of attorneys to review and recommend a short list of candidates and to consult with junior Sen. Jon Tester, D-Mont., on forwarding names to the White House.

Once a person is nominated, the candidate goes through an FBI background check and is reviewed and rated by the American Bar Association, Tobias said.

As for possible candidates for the judgeships, Tobias said it could be time for a plaintiffs’ lawyer. Christensen’s practice was defense litigation in medical malpractice cases.

Other possibilities include federal magistrate judges, state Supreme Court justices or state District Court judges and practicing attorneys, including American Indian lawyers, Tobias said.

Karla Gray, retired chief justice of the Montana Supreme Court, said a candidate’s experience in federal court is important because the federal system is significantly different from the state system.

Gray and Tobias both said female lawyers should be considered. Montana is one of about 15 of the 94 judicial districts that have not had a female district court judge, Tobias said.

“That kind of diversity is important,” said Gray, who was Montana's first female chief justice and first elected female justice. “The federal (bench) in Montana, with the sole exception of Magistrate Judge Carolyn Ostby, has been and continues until now to be entirely male."

Two female attorneys have confirmed an interest.

Martha Sheehy of Billings said she is interested in Cebull's judgeship. She declined to comment further.

Sheehy, whose husband is Sidney Thomas, 9th U.S. Circuit Court of Appeals judge based in Billings, co-chaired the advisory committee to Baucus when Christensen, 60, was picked last year to replace U.S. District Judge Don Molloy of Missoula, who went to senior status. She also is on the Montana Judicial Nominating Commission.

Sheehy has practiced law for 24 years, including the past 13 years in her own firm. She also represents The Billings Gazette.

Billings attorney Carey Matovich also confirmed an interest.

"I would be very honored to serve in that capacity," she said Friday.

Matovich, of Matovich, Keller & Murphy, has practiced law for more than 31 years. She has a general practice of civil and trial work.

Another prominent female attorney, Montana Supreme Court Justice Pat Cotter, said Thursday that she might be interested under different circumstances but that she intends to fulfill her commitment to a full term on the state's high court.

Cotter was re-elected in 2008 to a second, eight-year term on the bench. Cotter’s husband is U.S. Attorney Mike Cotter.

A federal district judgeship is “an extremely unique and important job” because of the effect a judge’s decision has on people's lives, said Missoula attorney Milt Datsopoulos, who co-chaired the advisory committee with Sheehy.

“Montana has a lot of not only good, but extraordinary lawyers. I think there will be a pool of applicants that can produce really a superb candidate,” Datsopoulos said.

Datsopoulos said his top three criteria for candidates are judicial temperament, professional achievement and experience and “intellectual firepower.”

Because a judge has “extraordinary power” to influence and affect people’s lives, a judge should have “the patience and I think the compassion to deal with people’s problems,” he said.

Datsopoulos also said an American Indian should be on the selection committee that recommends candidates because American Indians have a big stake in the federal system.

All major crimes on most of the Indian reservations in Montana are prosecuted in federal court, where laws and sentencing are more severe than in state court.

Both Cebull and Shanstrom served as federal magistrates before being appointed district judges by President George W. Bush and confirmed together in 2001.

A magistrate judge is appointed by a majority of the active judges in a district and hears civil and misdemeanor criminal cases and conducts arraignments.  Unlike federal judgeships, which are a lifetime appointment, a federal magistrate is appointed for eight years.

A magistrate judge's salary is $160,080. A federal district judge is paid $174,000 a year.

Meanwhile, a misconduct investigation by a 9th Circuit panel into Cebull is still pending. Cebull earlier this year forwarded on email from his office computer that contained a crude and racist joke involving President Obama.

Tobias said he expects Cebull will continue to stay active on senior status, calling him “very professional and very hard-working."

Nationally, there are 83 federal judiciary vacancies currently with 44 pending nominations, some of which have been pending for more than a year. That’s slightly less than 10 percent for all 874 federal judgeships. There are 19 anticipated vacancies with two nominations pending.

“The question is, how long would (a nomination) sit in the White House,” where nominations haven’t been happening that quickly, Tobias said.

The vacancy rate has been high since 2009, when the vacancies reached 90 positions and have fluctuated since then from about 70 to 100, Tobias said.

“I think the Republicans haven’t cooperated very much,” Tobias said. The Republicans, he continued, say the president hasn’t nominated enough people.

“But if they’re not moving them, what’s the point?” he said.

Nineteen nominees are awaiting floor votes by the Senate, but Republicans are not agreeing to those votes, he said. When there is vote, the person usually is confirmed by an overwhelming vote, he said.

The backlog of nominees has created problems for some districts, which are down one-third to one-half of their complement of judges, and ultimately it slows justice, Tobias said.

Tobias expects confirmation for Cebull’s and Haddon's replacements to be “relatively smooth” but that could depend on whether Republicans are more willing to cooperate than in President Obama’s first term.

“That is not clear yet,” he said.

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