WASHINGTON — Nevada’s two Democratic senators will eye measures in the next Congress to fill two federal judicial vacancies in the state — including one judgeship vacant for nearly three years and now considered a “judicial emergency.”
“We need all the help we can get,” said Chief District Judge Gloria Navarro in Las Vegas, who said rising caseloads and two vacancies are putting a strain on other federal courts in Nevada.
Sen. Catherine Cortez Masto said one measure would be to create a state commission to review and vet potential judicial candidates the Nevada senators could recommend to the White House for nomination.
Nevada’s senators in the new Congress, which convenes Jan. 3, also will have clout on committee decisions on recommending a U.S. attorney for Nevada. A current nomination for the U.S. attorney post died in committee.
Republicans are trying to alleviate a backlog of judicial vacancies created when they blocked many of President Barack Obama’s picks to sit on federal district and appellate benches and the Supreme Court.
Senate Majority Leader Mitch McConnell, R-Ky., has boasted a record number of confirmations of appellate judges and two Supreme Court nominees in the past two years.
But a backlog remains and includes 143 judicial vacancies as of December, with two in Nevada, according to the Administrative Office of the U.S. Courts.
Of the total number of openings, 66 nationwide are considered judicial emergencies, including one in Nevada created when federal Judge Robert Clive Jones took senior status on Feb. 1, 2016.
No state appointments in years
No judicial appointments for Nevada were announced by President Donald Trump in the past two years, a fact that has not gone unnoticed by Cortez Masto, who said state taxpayers are paying a price.
“The delay is at the administration level,” Cortez Masto said in an interview with the Review-Journal. “The names should be coming out of the White House.”
A White House spokesman declined to comment. Of the 143 judicial vacancies in district courts, there are nominees pending for 70 of them, but those candidates must be renominated in the next Congress.
Cortez Masto, a former Nevada attorney general and federal prosecutor, said the judicial vacancies are a hardship for the state and an issue that needs to be dealt with immediately.
“It’s a No. 1 issue for me,” she said. “Over the past two years we haven’t moved any.”
In addition to Jones, Judge James Mahan took senior status in June, leaving the state with vacancies in two of seven federal judgeships.
Cortez Masto said she and Sen.-elect Jacky Rosen have talked about creating a commission that could vet potential candidates whom the senators could recommend to the White House.
Other states, such as California, Illinois, Wisconsin and Oregon, have used bipartisan commissions to help make selections of qualified lawyers and state judges who meet standards and could pass muster with checks and background investigations for federal posts.
The Nevada senators face a hurdle with recommendations to a White House controlled by a Republican president, who could dismiss their picks and choose candidates he prefers.
A commission could help bridge that, said Carl Tobias, a professor at the University of Richmond School of Law.
“Commissions have worked well in some states, especially where there are different parties controlling the White House and the Senate delegation,” Tobias said.
“This White House might prefer a bipartisan commission that includes respected Republican attorneys from Nevada whose views the White House trusts,” said Tobias, who was a founding faculty member of the Boyd Law School at the University of Nevada, Las Vegas.
Clout in committee
Although a state with two Democrats could face hurdles with a Republican-controlled White House and Senate, Cortez Masto and Rosen could have more clout on the committee level with home state nominations for judgeships and U.S. attorney nominations.
Sen. Lindsey Graham, R-S.C., the incoming chairman of the Senate Judiciary Committee, said he would honor the process of favorable or unfavorable “blue slips” from home state senators on those nominations.
Under those rules, Cortez Masto and Rosen “should have more clout,” Tobias said.
Last year, the White House nominated Nicholas Trutanich to be U.S. attorney in Nevada. The nomination died with several others for lack of action by the Judiciary Committee.
The White House could renominate Trutanich, who served as Nevada Attorney General Adam Laxalt’s chief of staff, for the post in the 116th Congress. But the nomination would be subject to approval of Cortez Masto and Rosen, who could withhold or unfavorably report a “blue slip” on the nomination.
Cortez Masto said she would “not speculate” on the U.S. attorney nomination.
“Let’s just wait and see,” she said.
Nevada has an acting U.S. attorney, appointed by the Justice Department, so no vacancy exists. But the vacant district judicial seats have put a strain on the system.
Navarro said the vacancies have a huge impact, considering that the caseload in the state is going up.
“Essentially, we have twice the caseload of what a normal judge would have,” she said in an interview.
According to the Administrative Office of the U.S. Courts, case filings in the Nevada District of the 9th Circuit are higher than the average of federal district courts nationally, where caseloads grew by 6 percent last year alone.
Navarro, earlier this year, cited mortgage foreclosure and civil cases as the main reason for skyrocketing case filings and full dockets.
The Judicial Conference of United States in March 2017 recommended that Nevada receive an additional permanent district judge because of the high caseload in the state.
The loss of two of seven seats slows down the judicial process in Nevada, creating a backlog that hurts businesses and people with civil cases before the courts.
“It’s really not fair to the community,” Navarro said.
Cortez Masto agreed.
“I’ve had conversations with some of the federal judges who are overloaded with cases because of these vacancies,” Cortez Masto said.
“We are now limiting people’s access to the courts and (from) moving these cases in a timely manner,” she said.
Nevada’s judicial vacancies
The first vacancy in Nevada occurred on Feb. 1, 2016, when Judge Robert Clive Jones, appointed by President George W. Bush, took senior status.
President Barack Obama nominated Anne Rachel Traum on April 28, 2016 to fill the post, but her nomination was blocked by Sen. Dean Heller, R-Nev., and Republicans shut down the judicial confirmation process following the death of Supreme Court Justice Antonin Scalia and the nomination of Merrick Garland.
Traum, a UNLV William S. Boyd School of Law professor, never received a Senate hearing on her nomination, and she was not renominated for the vacancy by Trump.
Nevada’s second vacancy came last June when Judge James Mahan, nominated by President George W. Bush and confirmed in 2002, took senior status. Trump has yet to nominate anyone for the position.