Bench numbers struggle with denial of Green’s judgeship

Listen to this article

Monroe County District Attorney Michael C. Green is not the only one frustrated with the judicial nomination process. His lack of confirmation means the courts will continue struggling to meet a growing caseload with fewer active judges.

“This will have a serious impact on the business of the court,” said Judge William M. Skretny, chief judge of the U.S. District Court for the Western District of New York who was hoping Green would be available soon to fill a seat held by Judge David G. Larimer.

Judge Larimer has been on senior status for nearly three years, but continues working full-time. The nomination of Green, a Democrat, was returned to President Barack Obama on Saturday by the Senate without a vote.

“He is not going to be re-nominated,” said Brandon Lepow, a White House spokesman.

“From the court’s standpoint, we feel very badly for Mike Green and his family,” Judge Skretny said. “The ability of the court to administer justice and satisfy our obligations is seriously impacted by not having the active judge position filled promptly.”

Judge Larimer assumed senior status in March 2009 — 1,021 days ago, as of Monday, as noted on the U.S. Courts website (www.uscourts.gov). The opening of is one of 29 emergencies nationwide and the only one remaining in New York.

Judge Michael A. Telesca, who served as chief judge from 1989-95, assumed senior status in May 1996. His vacancy was filled by Judge Charles J. Siragusa whom Judge Skretny said plans to take senior status next December, leaving the court with no active judges in Rochester. Judge Siragusa notified Obama last week that he plans to take senior status effective December 2012.

“It is virtually impossible to view the failure to fill the position in isolation because there is a serious trickle-down effect to not filling the position,” Judge Skretny said. “What it means is that the senior judges, both Judge Telesca and Judge Larimer, have to continue doing much more than perhaps they would like to do and it puts a greater burden on Judge Siragusa as the only active judge in Rochester.”

He said Judge Larimer was hoping, with the addition of Green, to cut back some in terms of carrying a full caseload, but that will probably be delayed.

“We’re very fortunate to have both Judge Larimer and Judge Telesca continuing to work as extensively as they are working,” Judge Skretny said. “They don’t have to. It will make it more difficult for them to cut back even a little bit.”

Judge Skretny said the court is hoping for swift presidential and congressional action to fill the vacancy that has been out there for three years and that they keep in mind there will be an additional opening to fill in a year.

He said the court has been notified by the president’s office that the president will be nominating a new person for the position, but he did not know whether that meant the process will start over from the beginning or if someone will be selected from candidates involved in the screening process that resulted in Green being recommended for the nomination.

Green, speaking to reporters Monday morning, said he began the nomination process in December 2008 after he heard Judge Larimer was planning to assume senior status. He blames Senate Republicans for blocking his nomination. He said he was told Washington had received opposition from Monroe County.

Bill Reilich, Monroe County Republican Party chairman, said he did not make any calls or send any emails; that it is not anything he would have spent his time on.

“We have a Democratic president,” said Reilich, reached after the press conference. “We have a Democratic-controlled Senate and the third most powerful Democratic senator in the U.S. is [U.S. Sen. Charles E.] Schumer. To imply that a Republican from Monroe County had enough influence to stop this process is just unbelievable. With the lack of success on this, I think the Democrats should look within their organization, rather than try to blame others for their failure.”

He added he is not an attorney or part of the legal system and he would not even know what steps to take; his role is to get Republicans elected.

“Mike Green would have made an outstanding judge and it is very unfortunate not only for him, but for a strong judiciary, that partisan politics stood in the way,” said Schumer, who serves on the Senate Judiciary Committee, in a statement.

Green said as district attorney, he made decisions that angered Republicans including prosecuting former party Chairman John Stanwix, also former executive director of the Monroe County Water Authority, who admitted accepting money from a consulting firm that worked with the authority; and prosecuting several Republicans in connection with the Robutrad scandal.

Green said he was sure his decision to support Assistant District Attorney Sandra Doorley in her successful bid to succeed him “didn’t sit well with people.” He accused Republicans of using the nomination process to try to keep him quiet during Doorley’s campaign.

Green said Doorley, who takes office Jan. 1, told him he could stay on as long as he wanted, but he said that he will leave the office Dec. 31. He also believes Doorley’s releasing five assistant district attorneys was another excuse for Republicans to scuttle his nomination even though they are on the payroll until the end of his term.

“I think the ultimate frustration is that after three years, I didn’t even get a vote on my nomination,” Green said, noting the whole process has been a strain on him, his family, the district attorney’s office and the federal court system.

“This process is over and it’s time for me to move forward,” Green said, thanking Schumer, the Justice Department and the president for the confidence he had in him.

Green said even if Obama were to nominate him again, he would not pursue confirmation.

“I’m done with this process,” he said. “Three years is long enough. I’ve been through enough. My family’s been through enough. I just think something is broken when it takes three years to make a decision.”

Green said he does not regret pursuing the “once-in-a-lifetime” opportunity and that he does not believe in looking back.

“There’s a time to move forward and this is it,” Green said. “I’m not going to foreclose any options. I have a number of very good options on the table.”

Schumer first recommended Green for nomination in July 2010. No action was taken on it by the 111th Congress when it ended its session Dec. 31, 2010. Obama nominated Green on Jan. 26, just weeks after the 112th Congress convened. Green testified before the Senate Committee on the Judiciary on May 24 and his nomination was reported to the full Senate on June 16 with the only opposition coming from Sen. Michael S. Lee, R-Utah.

Green has been with the district attorney’s office for 25 years, serving as district attorney since Jan. 1, 2004. His seat was up for re-election this year, but he chose to await Senate confirmation and not to seek re-election. According to the nomination process, Green would have been removed from consideration if he chose to run again.

The Senate on Saturday reached an unanimous-consent agreement that the nominations it received during the 112th Congress would remain in status quo for the second session, which begins in January. Green was among 12 exceptions in the “status quo agreement,” according to the Congressional Record.

Sen. Patrick Leahy, chair of the Senate Judiciary Committee, also blames Republicans for not voting on the pending nominations before the end of its first session, something he notes, as recorded in the Congressional Record, was unprecedented until they did it at the end of last year.

“With one of every 10 federal judgeships vacant, we can and should be doing all that we can to consider and confirm judicial nominations without unnecessary delays,” Leahy said after the vote. “There are 21 judicial nominees awaiting final Senate action, all but two of them reported with significant bipartisan support, 16 of them unanimously.”

He notes, as did Green, that nominees go through an extensive evaluation process before being reported to the Senate, which includes completing an extensive questionnaire and questioning at a hearing, an extensive FBI review and a review by the American Bar Association’s Standing Committee on the Federal Judiciary.

“It is wrong to delay votes on these qualified, consensus nominees,” Leahy said. “Our courts need qualified federal judges, not vacancies, if they are to reduce the excessive wait times that burden litigants seeking their day in court. It is unacceptable for hard-working Americans who are seeking their day in court to suffer unnecessary delays.”

Judge Skretny said he could see where the process may discourage other candidates from seeking a federal judgeship.

“We’re just optimistic and hopeful that there can be a new nominee that will fill that seat as soon as absolutely possible or practical,” he said. “We really need the help here in this district. The judges will do what we have to absorb the continually growing caseload to make sure that the affect is not to cause litigants problems that they should not be responsible for. We’ll do the very best we can until we get a replacement.”