Posted: March 15, 2007
DISORDER IN THE COURT
By Celia Cohen
Delaware's congressional delegation is so collegial that the three members often send out a single press release, but there appears to be a drift from the normal consensus in the choice of a new judge for the U.S. District Court.
Furthermore, it was encouraged by the White House.
The federal court in Wilmington has been down one of its four judges since Kent A. Jordan moved to the U.S. 3rd Circuit Court of Appeals in mid-December. It is up to President George W. Bush to nominate a replacement, who must be confirmed by the Senate for a lifetime appointment.
The Bush administration asked Rep. Michael N. Castle, its lone fellow Republican in the delegation, to recommend a list of judicial candidates -- the same procedure it followed when the last vacancy in 2002 went to Jordan, but this time it did not stop there.
Instead, shortly before Christmas, the White House turned to U.S. Sen. Joseph R. Biden Jr. and U.S. Sen. Thomas R. Carper, both Democrats, to solicit recommendations from them, as well.
It was an unusual step, and it is unclear whether the Bush administration simply was facing the political reality of having the Senate now in Democratic hands with Biden as a senior member of the Judiciary Committee, or whether it has something to say about the the White House's relationship with Castle, a maverick whose stem cell research bill is the only legislation Bush has vetoed.
Castle did not seem entirely comfortable with the situation, although he downplayed it.
"I'm very protective about the Delaware judiciary, so I'm not about to play games," said Castle, an ex-governor accustomed to selecting judges. "As far as I know, there are no rules on this. I'm not sure we don't need to develop a new methodology."
Carper, also a former governor, minimized it, too. "I think they're [Bush administration] just being polite and acknowledging there has been an election," he said.
Castle compiled his list and submitted it in late February, according to Jeffrey A. Dayton, the congressman's district director. Although it was not made public, there are said to be four names, all Republicans, not ranked in any order of preference.
They are: U.S. Attorney Colm F. Connolly; Richard A. Forsten, a partner in the Wilmington office of Buchanan Ingersoll & Rooney; Thomas P. Preston, a partner in the Wilmington office of Blank Rome; and Andrea L. Rocanelli, chief disciplinary counsel for the Delaware Supreme Court.
Castle ran his list by Biden and Carper, but they decided to take up the White House's offer to suggest their own candidates. The Constitution does say senators are entitled to give advice and consent, after all.
There has been no determination yet whether Biden and Carper will combine their recommendations in one list or send their preferences separately.
Intermediaries for the senators have been prospecting for candidates, most notably among the judges of the state Court of Chancery and the Superior Court, but there does not appear to be much interest for a number of reasons.
Democratic judges think this White House will not consider them. Patent cases, central to the district court's docket, almost universally are regarded as eye-glazing. In addition, there would be a pay cut, because a federal judge's salary is $165,200 a year, while the Chancery and Superior Court judges get at least $168,100 a year and as much as $185,000 a year with more regular raises.
The biggest deterrent of all, however, is a little-known state law that says state judges must forfeit their state pensions, including survivor benefits for spouses, if they switch to the federal court.
The upshot is an uneasy state of affairs, and it could become even more so, depending on what the Bush administration does next.
It already downgraded Castle's role. If it does not mind taking its chances on confirmation, it could ignore whatever Biden and Carper want, too.