Thursday, Nov. 05, 2009

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

WASHINGTON -- The nomination of two N.C. judges to the nation's second-highest court could further a leftward push by President 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 the Carolinas and three other 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 N.C. seats to three.

Diaz would be a historic appointment as the first Hispanic 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," 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 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 make an impact on 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.

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.

By tradition, an open seat is replaced by a judge from the same jurisdiction, said Carl Tobias, a law professor at the University of Richmond who studies the 4th Circuit.

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," he said.