Utah's short-handed federal bench still waiting for reinforcements

Published: Wednesday, Dec. 7 2011 6:40 p.m. MST

SALT LAKE CITY — Utah is poised to have a full complement of federal judges for the first time in more than two years.

Pending Senate approval of two nominees, the U.S. District Court in Salt Lake City will be back up to five full-time judges. But those confirmations don't come quickly.

"I feel bad for the candidates," said Mark Jones, clerk of the court. "They seemed to be able to do it faster in the past. It must just be the political environment we're in."

One of those nominees, David Nuffer, who currently works as a federal magistrate, has waited since June. The Senate, though, is expected to confirm him before it adjourns this month.

Last week, President Barack Obama nominated Salt Lake lawyer Robert J. Shelby to fill the other slot. He likely won't be up for confirmation until next spring.

"It is frustrating," said Sen. Mike Lee, R-Utah. "I wish we would have had Judge Nuffer through faster." Lee said he also intends to support Shelby.

Utah's first female federal judge, Tena Campbell, went eight days from nomination to confirmation in 1995. Less than four months has been typical of others currently on the federal bench in Utah. Appointments are for life.

Obama was slow to fill federal district and appeals court vacancies during his first year in office. Through 2010, he had appointed 62 judges, including two U.S. Supreme Court justices. He's on track to double the total this year. It could slow down again in 2012 because it's a presidential election year.

As of Wednesday, there were 80 federal judgeship vacancies and 43 nominees pending nationwide.

The federal court in Utah has operated with fewer judges since Judge Dale A. Kimball, 72, assumed senior status in November 2009. Beginning at age 65 and after 15 years of service, federal judges may take senior status, which allows them to work with a reduced caseload.

Campbell, 67, also became a senior judge in January of this year, leaving the district with three full-time judges and four senior judges, the other two being Judge Bruce Jenkins, 84, and Judge David Sam, 78.

Sen. Orrin Hatch, R-Utah, recommended both Nuffer, who would replace Kimball, and Shelby, who would succeed Campbell. He advanced other names last year that the White House rejected before settling on Nuffer.

Hatch, a former Senate Judiciary Committee chairman, looks for candidates with an eye toward getting them through the White House and the Senate, which currently are controlled by Democrats.

“Ultimately it’s the president’s choice to select a nominee, but my goal for the federal bench in Utah is always to find highly qualified men and women who are well-respected in the legal community and who can get smoothly confirmed. The process from recommending candidates to confirming nominees can be long and sometimes unpredictable, but it has produced distinguished jurists for Utah who are impartially committed to the rule of law," he said.

Former federal judge Paul Cassell said Nuffer and Shelby are well qualified for the job. "I don't think either of them is going to be controversial in any way," said Cassell, now a University of Utah law professor.

As the court has operated with fewer full-time judges, the number of civil and criminal cases shot up dramatically. Civil cases increased 15 percent in 2009, while criminal cases rose 23.5 percent in 2010. District judges shifted some of their caseloads to five magistrates whose primarily duty is to handle misdemeanor crimes.

"I think it puts a lot of stress on the system when you don't have your full complement of judges," Cassell said, noting criminal cases take priority due to defendants' right to a speedy trial.

Lee said that has affected the court's ability to mete out justice.

"I want to be careful how I say this because I don't want to suggest that it has had no impact because certainly it has," he said. "On the other hand, I don't think it's a situation in which you can say that justice has not been administered properly. They've just had to do more with fewer resources and they can maintain that over the short run, but it's time we get these vacancies filled," he said.

Jones said the judges have been good about the heavier caseloads.

"Fortunately, all the judged have stepped up. They really don't complain," he said. "I'm sure they get frustrated."

Utah's federal bench

Chief Judge Ted Stewart

Nominated: July, 27, 1999 (Clinton)

Confirmed: Oct. 5, 1999

Judge Dee Benson

Nominated: May 16, 1991 (George H.W. Bush)

Confirmed: Sept. 12, 1991

Judge Clark Waddoups

Nominated: April 29, 2008 (George W. Bush)

Confirmed: Oct. 21, 2008

Senior Judge Tena Campbell

Nominated: June 22, 1995 (Clinton)

Confirmed: June 30, 1995

Senior Judge Dale Kimball

Nominated: Sept. 4, 1997 (Clinton)

Confirmed: Oct. 21, 1997

Senior Judge Bruce Jenkins

Nominated: Aug. 28, 1978 (Carter)

Confirmed: Sept. 22, 1978

Senior Judge David Sam

Nominated: Sept. 9, 1985 (Reagan)

Confirmed: Oct. 16, 1985

E-mail: romboy@desnews.com

Twitter: dennisromboy

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