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Will Critical Review Keep Judge From D.C. Circuit Slot?

Posted on October 11, 2013 to

D.C. Court of Appeals Judge Vanessa Ruiz, who has been aggressively pushed by a number of well-connected Democratic lawyers for promotion to the U.S. Court of Appeals for the D.C. Circuit, is being taken to task for having an excessive backlog of undecided cases. As part of a mandatory review before Ruiz could be reappointed to another 15-year term, the seven-member D.C. Commission on Judicial Disabilities and Tenure wrote that her backlog was “the highest by far” of any appellate judge at the court.

In the District, judges on the local bench — like federal judges — are nominated by the president and confirmed by the Senate. Unlike federal judges, they must be reappointed after serving 15 years. Despite giving Ruiz a “well qualified” rating, which automatically ensures her reappointment, the commission pulled few punches in the evaluation it sent to President Barack Obama. “The Commission believes that this problem is not only about the pace of opinion production, but also about a less than fully adequate appreciation on the part of Judge Ruiz as to how her backlog adversely affects the litigants, the court, and her colleagues,” the Aug. 10 evaluation said.

One commissioner, Jones Day partner Noel Francisco, a former Bush U.S. Department of Justice official, took the unusual step of filing a dissent which recommended that Ruiz receive merely a “qualified” rating because of the backlog. A qualified rating means the president must either renominate the judge and subject her to Senate scrutiny again or pick someone else. Commission members are appointed by the president, the D.C. mayor, the D.C. Council, the chief judge of the U.S. District Court for the District of Columbia and the D.C. bar. Both the mayor and the bar get two picks each.

Francisco was appointed to the commission by Bush. Ruiz, who declined to comment, submitted a letter to the commission on Aug. 13 saying that its criticisms about her backlog were based on potentially misleading statistics provided by Chief Judge Eric Washington. “The chief judge submitted averages for active judges at intervals since 2006, as well as the actual number of my pending cases during that period. Without information on where on the spectrum other judges stand in relation to the average, one cannot infer how I stand in relation to any one of them,” Ruiz said in her letter, which she asked be forwarded to the White House. Francisco said the letter would not change his vote. “My decision is based on Judge Ruiz’s significant and longstanding backlog, which her letter does not dispute,” he said.

Ruiz has had a number of heavy hitters pushing for her to be named to a higher court. Supporters include lawyers at Jenner & Block and Wilmer Cutler Pickering Hale and Dorr, who have lines into the upper echelon of the Justice Department. In March, the Hispanic Bar Association of D.C. announced its endorsement of Ruiz for a circuit slot and sent letters of support to Attorney General Eric Holder Jr. and White House Counsel Gregory Craig.

The question now is whether the commission’s report and Francisco’s dissent will torpedo her chances for the federal bench. “Case management is not an unsolvable problem, but it is a significant issue and one that will be asked about,” said Scott Coffina, a partner at Montgomery, McCracken, Walker & Rhoads who, as associate counsel to President George W. Bush, worked on judicial nominations. A former judge-picking adviser to the Clinton administration agrees. “For appellate court judges, poor case management is not good because they sit in panels. If someone isn’t getting their work done, it affects the litigants, but it also affects the other judges on that panel,” said the former adviser, who spoke on condition of anonymity. “You can be an intellectual giant, an Oliver Wendell Holmes, but if you’re not getting the work done, it’s an issue.” Jamie Gorelick, a partner at Wilmer who served as deputy attorney general in the Clinton administration, said the backlog may not keep Ruiz from the federal bench. “Case management would be something that would be discussed, but in terms of priority it’s going to be farther down the list,” said Gorelick, who added that she knows Ruiz and thinks highly of her. “What is more important to the president is to find someone with an impressive intellect who has a judicial philosophy in sync with his own.” Other supporters point to the positives mentioned in the commission’s report, including her “engaged” questioning and her “significant role in improving the administration of justice.”

Ruiz, in her letter, acknowledged having a backlog that is “bigger than I feel comfortable with,” but she said it was created by a “perfect storm” in 2006. That year, she became president of the National Association of Women Judges at the same time that the court was already overburdened as a result of vacancies. Ruiz’s community involvement is well known. In recent years, she has held leadership positions inside and outside the courthouse. Her involvement in community activities prompted the commission to say in its evaluation that in order to address her backlog, Ruiz may “require a temporary reduction in these activities.”

Unlike the federal courts, the D.C. Court of Appeals does not annually make public its backlog statistics for individual judges. Washington would not provide Ruiz’s caseload statistics to The National Law Journal. The D.C. Court of Appeals has long been criticized for its backlog. According to the most recent court statistics, the average time from argument to decision was 135 days. But some cases take much longer. Last month, both Ruiz and Washington issued opinions that had been argued more than two years ago.

Commission chairman William Lightfoot, managing partner of D.C.-based Koonz, McKenney, Johnson, DePaolis & Lightfoot, L.L.P, said while the confusion over the court’s statistics may warrant a clarification, the commission plans to closely monitor Ruiz’s progress in reducing her backlog and will meet with her in December for an update. “We’d like to see her backlog cleared. That’s the goal,” Lightfoot said.

To speak with an attorney at Koonz, McKenney, Johnson, DePaolis & Lightfoot LLP, contact our office by calling (800) 724-4221.

Koonz, McKenney, Johnson, DePaolis & Lightfoot, L.L.P.

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