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March 29. 2013 3:50PM

Federal judge McAuliffe moving to ‘senior’ status but keeping full caseload

CONCORD -- U.S. District Court Judge Steven J. McAuliffe will assume senior status on Monday, opening a vacancy at the Concord federal courthouse to be filled by the Obama administration.

Clerk of Court James Starr said Friday that while McAuliffe, a more than 20-year veteran of the federal bench, will become a senior judge, he has chosen to continue to take a full caseload until a successor is appointed. At that point, Starr said, it will again be McAuliffe’s choice regarding how heavy of a caseload he takes, or whether he continues to take any cases at all.

It could be a long wait for a successor. Research by the nonprofit think-tank Brookings Institution has shown that more than a year typically passes between a federal district judgeship becoming vacant and being filled.

According to the USCourts.gov, the web site of the federal judiciary, beginning at age 65, a judge “may retire at his or her current salary or take senior status after performing 15 years of active service.”

The web site says senior judges “essentially provide volunteer services to the courts” and “typically handle about 15 percent of the federal courts’ workload annually.”

McAuliffe will become the second senior judge serving the New Hampshire’s U.S. District Court.

Judge Joseph DiClerico moved to senior status in 2007 and remains “very active,” taking about half of a full caseload, said Starr.

Still on the bench in Concord are Judge Paul Barbadoro, who, like McAuliffe, was appointed in 1992, and current Chief Judge Joseph LaPlante, who was appointed in 2007.

Starr explained that the post of chief judge rotates on a seven-year basis. LaPlante has held the position since 2011, while McAuliffe was chief judge from 2004 to 2011, Barbadoro was chief judge from 1997 to 2004, and was preceded by DiClerico.

McAuliffe, of Concord, is the widower of Christa McAuliffe, the teacher who died in the tragic explosion of the space shuttle Challenger in 1986. He remarried in 1992.

McAuliffe was an assistant attorney general from 1977 to 1980 and then joined the Concord law firm of Gallagher, Callahan and Gartrell, P.A., becoming a partner in 1983.

He was appointed to the federal bench by former President George H.W. Bush.

U.S. Sen. Jeanne Shaheen, the state’s senior senator, submitted to the White House the names of three Granite Staters she believes are qualified to succeed McAuliffe, a Shaheen spokesman said.

The recommendations came “after consulting with representatives from New Hampshire’s law enforcement and legal community as well as Senator (Kelly) Ayotte,” said Shaheen spokesman Elizabeth Kenigsberg.

“We are aware of the backlog, which is why Senator Shaheen submitted recommendations as quickly as possible. We want to make sure there is as little disruption as possible to New Hampshire’s federal court system and its functions,” Kenigsberg said.

Clerk Starr said, however, the Concord court has no backlog.

“When I think of a backlog, I think of not being able to reach cases when people want to try them,” he said. “We set cases on tracks. A case might be on a one-year track or a two year track.

“We find out what (attorneys) want for their trial schedules and we accommodate them,” said Starr. “We have no situations in which we’re not reaching cases when people want them and we are well within the speedy trial requirements.”

Still, it could be months before McAuliffe’s successor assumes the bench.

Brookings Institution visiting fellow Russell Wheeler wrote in late January that the average time span “from vacancy to nomination” for district judges was 406 days during President Barack Obama’s first term, as compared to 276 days during George W. Bush’s first term and 370 during Bill Clinton’s first term.

Wilson, a former deputy director of the Federal Research Center, described by Brookings as a research and education agency for the federal court system, also wrote that there were “223 days on average from nomination to confirmation of district judges” during Obama’s first term, “up from 154 days in Bush’s first term and 93 in Clinton’s.”

According to the federal Judicial Branch web site, as of Friday there were 67 vacancies in the U.S. District Court system -- McAuliffe is the 68th -- and 17 pending nominees.

Wilson wrote that recent Senate rule changes “may ameliorate the wait for district judges. Previously, the mere threat of a filibuster over a nomination made any majority leader reluctant to bring a nominee to the floor, because even if the Senate voted to end the filibuster, it faced the possibility of up to 30 hours of debate before a vote on the nomination itself.

“The rules change reduces that post-cloture debate time for district judges to two hours, which should make the majority leader more likely to risk a cloture vote without fear of squandering a lot of valuable floor time simply to get some district confirmations,” Wilson wrote, adding that the change may speed the nomination and confirmation process during Obama’s second term.

“The rules change, however, does nothing to speed the time from vacancy to nomination,” he wrote.


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