Cover Story: US 4th Circuit and North Carolina

By Jeff Atkinson -bio | email

CHARLOTTE, NC (WBTV) - Mecklenburg county could be losing a well-respected superior court judge in Mecklenburg County, which seems bad, but losing this judge could actually be good for the entire state of North Carolina.  PrimeTime's Jeff Atkinson explains in our Cover Story.

The judge we're talking about is Albert Diaz, currently a superior court judge specializing in complex business cases here in Mecklenburg county.  And where he could be going is the United States 4th Circuit Court of Appeals, just one step down from the U.S. Supreme Court.

For Mecklenburg Judge Albert Diaz.. it's one of the greatest jobs a judge could aspire to.

President Obama Wednesday nominated Diaz and North Carolina Court of Appeals Judge Jim Wynn to the 4th Circuit Court of Appeals.

Similar to the way a vacancy on the U.S. Supreme Court is filled.. Judge Sonia Sotomayor the most recent example.. the president appoints judges to the court of appeals.. Senators decide whether or not to confirm them.

But unlike the high court, which has nine justices and no vacancies, the Fourth Circuit based in Richmond has 15 seats and 5 vacancies.

"Five vacancies is a lot," says Professor Meredith Jeffries of the Charlotte School of Law, "that creates a lot of work for the judges that are there. A lot of backlog and just inefficiency."

A longer time for cases to get resolved.. but Charlotte School of Law professor Meredith Jeffries says equally worrisome out of a court of a possible 15.. just one judge is from North Carolina.

"It's a hotly contested issue in this particular state for some reason."

Some of the blame lies with the late Senator Jesse Helms.

In trying to keep the 4th Circuit conservative..when a Democratic president would nominate what Helms considered a liberal judge.. Helms would block the North Carolina judge's nomination.

Democrat John Edwards did a tit for tat.. when a GOP president nominated a conservative judge.

It became a political football and North Carolina ended up being unrepresented.. says high-profile Charlotte attorney Jim Cooney.

"Let's face it," he says, "you can fill a banquet room at the Golden Corral with all the folks who've been nominated for the Fourth Circuit and never got a hearing or never got a vote."

The Fourth Circuit covers the Carolinas.. Virginia.. West Virginia and Maryland.  With its geographic size and population.. experts believe North Carolina could have as many as five judges on the Fourth Circuit.. again right now we have just one.

Says Cooney, "What we have are judges deciding issues of North Carolina law who've never practiced in North Carolina. And you really don't have a familarity with the way in which our procedures work or our law works."

At the appeals court level is often where law is settled.. it was the 4th Circuit for example that decided CMS bussing should end earlier this decade.

Whether the two North Carolina judges nominated Wednesday will be confirmed is up to the U.S. Senate.  The things that held up previous nominees aren't there now.. Senators Helms and Edwards. And Democrats have a filibuster-proof majority.

If Diaz is confirmed.. he would make history.. becoming the first Hispanic on the 4th Circuit.