N.C. has 2 up for Court of Appeals

Staff WritersNovember 5, 2009 

  • Age: 48

    Hometown: New York City, now lives in Charlotte

    Current job: Special Superior Court Judge for Complex Business Cases, one of three in North Carolina

    Education: Bachelor's degree, University of Pennsylvania, 1983; New York University School of Law, 1988; Masters in Business Administration, Boston University, 1993

    Experience: U.S. Marine Corps Legal Services Support Section and U.S. Navy Office of the Judge Advocate General. Left active duty in the Marine Corps in 1995 and worked as an associate at Hunton & Williams law firm. Appointed to the N.C. Superior Court in 2001. Served as a reserve military judge in the U.S. Navy-Marine Corps Trial Judiciary until he retired from the military in 2006 at the rank of lieutenant colonel.

  • Age: 55

    Hometown: Native of Robersonville, now lives in Cary

    Current job: Judge, N.C. Court of Appeals

    Education: Bachelor's degree, UNC-Chapel Hill, 1975; Marquette University Law School, 1977; Master of Laws, University of Virginia School of Law, 1995

    Experience: U.S. Navy JAG Corps, active duty from 1979 to 1983. He is a certified Military Trial Judge and a captain in the U.S. Navy Reserves. Served as an appellate public defender and worked in private practice until 1990, when appointed as a judge. Chairman of the American Bar Association Judicial Division.

    Source: The White House, The N&O, The Charlotte Observer

  • The U.S. Court of Appeals serves as the nation's second-highest court, a step below the U.S. Supreme Court, and holds powerful sway over legal matters. The court is divided into circuits.

    The 4th Circuit for many years distinguished itself as the most conservative appeals court in the land, rarely overturned by the Supreme Court under then-Chief Justice William Rehnquist.

    It covers cases from North Carolina, South Carolina, Virginia, West Virginia and Maryland. There are 15 seats, five of which are vacant. President Barack Obama has made four nominations to the court, including two from North Carolina.

    The appeals courts are not dealing with individuals in front of them but with matters of law, such as a question of how a federal district court handled a particular aspect of a case. The issues can be excruciatingly narrow.

— The nomination of two North Carolina judges to the nation's second-highest court could further a leftward push by President Barack Obama in shaping the federal judicial system.

The confirmations also would give North Carolina the sort of heft on the court sought for years by the state's legal community and its senators in Washington. North Carolina now has just one member on the 15-judge panel, which hears cases from five mid-Atlantic states.

Judges Jim Wynn of Cary and Albert Diaz of Charlotte were nominated by Obama on Wednesday to the 4th Circuit Court of Appeals. If confirmed, they would bring the number of North Carolina seats to three.

Diaz would be a historic appointment as the first Latino member of the 4th Circuit. He now specializes in complex business cases in the Mecklenburg County Superior Court.

Wynn, who sits on the N.C. Court of Appeals, is entering his second confirmation process. Former President Bill Clinton nominated Wynn in 1999 to the same court, but that was blocked by then-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 career in the U.S. Navy. Wynn remains a captain in the U.S. Navy Reserves and is a certified military trial judge.

"They've spent a lifetime training for these positions," said Burley Mitchell, a Democrat and former chief justice of the N.C. Supreme Court.

Wynn and Diaz 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 from Virginia and Maryland. The confirmation of all four Obama nominees could impact the 4th Circuit's makeup, both in diversity and ideology.

"It means that 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.

Curt Levey, executive director of the conservative Committee for Justice, a Washington judicial advocacy group, said Obama "sees an opportunity to shift what was a conservative circuit to be now a quite liberal circuit."

No cakewalk

Levey has urged Republican senators to keep in mind the past treatment of Bush nominees as they consider Diaz and Wynn.

"I will predict ... that life will not be made easy for these two nominees," he said.

For Wynn and Diaz, the next step would be confirmation hearings before the U.S. Senate Judiciary Committee. Hellman said they can expect questions on issues such as abortion rights, criminal law and environmental regulation.

But the 4th Circuit also has heard many terrorism cases, Hellman said. Their military backgrounds might ease the concerns of some GOP senators about their understanding of national security, he said.

Appeals courts play a critical role in the federal judiciary. The U.S. Supreme Court takes so few cases among those petitioned that the appeals courts end up as the final decision-makers in nearly all the cases that come before them.

North Carolina has traditionally had two seats on the 15-member panel, with one now vacant. If Wynn and Diaz are confirmed, 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 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.

A lone Tar Heel

For years, the state has had just one member on the 4th Circuit: Allyson Duncan of Durham, nominated by President George W. Bush in 2003.

Another Bush nominee, U.S. District Court Judge Terrence Boyle of Edenton, languished for years before the White House eventually withdrew his name. That seat has been open since the early 1990s.

U.S. Sen. Kay Hagan, a Greensboro Democrat, called the two nominations "a victory for North Carolina."

"For too long partisan bickering and obstructionism on both sides of the aisle have unnecessarily derailed the nominations of qualified North Carolinians," Hagan said.

And much depends on the views of Republican U.S. Sen. Richard Burr of Winston-Salem. Opposition from him could potentially scuttle the confirmations of either Diaz or Wynn, Hellman said.

Burr praised the judges' experience, their distinguished backgrounds and their military service.

He didn't, however, say how he would cast his vote.

Staff writer Michael Biesecker contributed to this report.

bbarrett@mcclatchydc.com or 202-383-0012

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