SELYA

PROVIDENCE — In back-to-back announcements in March 2006, the only Rhode Islander on the U.S. 1st Circuit Court of Appeals and the chief federal judge in Rhode Island said they would step down from full-time service by the end of that year.

Fourteen months later, those vacancies remain unfilled.

Both Judge Bruce M. Selya, who has been the only Rhode Island resident on the 1st Circuit since 1986, and former Chief U.S. District Judge Ernest C. Torres remain on senior status, handling a lot of cases.

But the White House has not nominated anyone for those key federal judgeships, and the 1st Circuit vacancy has been declared a “judicial emergency” by the Judicial Conference of the United States, which is the governing body that sets federal court policy and speaks on behalf of the U.S. judicial system.

The conference’s definition of an emergency includes vacancies in appellate courts where there are more than 700 cases filed for each three-judge panel. Selya’s seat is one of 15 judicial emergencies on appellate and district courts nationwide.

Gary H. Wente, circuit executive for the 1st Circuit, said it is “very important” to fill the seat that Selya vacated. He noted that the 1st Circuit is authorized to have six active judges to handle cases from Rhode Island, Massachusetts, New Hampshire, Maine and Puerto Rico.

“You have to understand, we are a relatively small court that uses of lot of visiting judges from other circuits … ” Wente said. He noted the Judicial Conference has for years recommended adding a seventh active judge for the 1st Circuit, but Congress has never provided the necessary authorization.

Wente said, “It’s unusual in the 1st Circuit for a vacancy to go this long. We have a history of filling these vacancies relatively quickly.”

Selya, 72, of Providence, said that 14 months ago, when he announced that he’d be assuming senior status on Dec. 31, he “hoped it would give the political establishment time to fill the seat.”

With no successor in sight, Selya has maintained a full caseload. “I enjoy it,” he said. “I’m not complaining, but talk to my wife and you might get a different story.”

Still, Selya said he is going to have to cut back his workload in the fall because he has made commitments to his family and he is scheduled to teach a class at the Roger Williams University law school. He has designed a course called The Lessons of Litigation.

Selya noted that because he is on senior status, he no longer has a vote on which cases will be heard by the full circuit court, as opposed to the three-judge panels that handle most cases. “The state won’t have a voice,” he said. “That can’t be good for the state.”

Selya said that when he joined the appeals court, there had not been a Rhode Islander on the 1st Circuit for 15 years. “I remember as a practicing lawyer how unfair I thought that was,” he said. “Rhode Island ought to have a voice in what is happening. This is the court right below the Supreme Court.”

In the past 200 years, Selya has been just the fifth Rhode Islander to sit on the appeals court. And, he said, “To have that seat unoccupied makes me very uncomfortable as far as the state is concerned, especially because we have an abundance of Rhode Islanders who are brilliantly well qualified to sit on this court.”

When Selya first made his announcement, those expected to receive consideration as successors included former state Supreme Court Justice Robert G. Flanders Jr., U.S. District Judge William E. Smith, state Superior Court Judge Robert D. Krause, U.S. Attorney Robert Clark Corrente and state Supreme Court Justice Paul A. Suttell.

Just a few days after Selya’s announcement, then-Sen. Lincoln D. Chafee held a news conference at his Providence office to announce that he was recommending Flanders for the vacancy. But the White House never nominated Flanders, and Republican Chafee lost the November election to Democrat Sheldon Whitehouse.

Whitehouse, a member of the Senate Judiciary Committee, was asked about the judicial vacancies at a recent community dinner in Cranston. “We haven’t heard much,” he said. “It looks like wait-and-see at this point.”

Whitehouse said the nomination process begins with the White House counsel’s office and he noted that office has undergone a recent change with Fred F. Fielding replacing Harriet Miers as White House counsel. Also, he said the process may have been slowed by controversy surrounding Attorney General Alberto Gonzales, who has been sharply criticized over the firing of eight United States attorneys.

Whitehouse was asked what Flanders’ chances were of securing the nomination for the 1st Circuit vacancy. “I don’t really see any at this stage,” he said. “There is still no signal out of the White House that he will be put forward. They’ve had his name for all this time and haven’t put it forward.”

Whitehouse noted that if Judge Smith is nominated for the 1st Circuit vacancy, that would leave two vacancies on the U.S. District Court in Providence. “If he’s the candidate, we’re going to have to talk about who would be named to replace him,” he said.

Those expected to receive consideration for the vacant District Court seat include U.S. Attorney Corrente, Judge Krause, Providence lawyer John R. “Jay” Gowell Jr., former Republican Lt. Gov. Bernard A. Jackvony and U.S. Magistrate Judge Lincoln D. Almond, son of former Republican Gov. Lincoln C. Almond.

Torres announced in March 2006 that he would assume senior status on Dec. 1. After that date, Torres kept handling his active cases, and he continues to accept new cases, though at a reduced level, according to Chief U.S. District Judge Mary M. Lisi. At the same time, she said, Senior U.S. District Judge Ronald R. Lagueux continues to handle cases, including the civil cases stemming from The Station nightclub fire, which killed 100 people and injured twice that number in 2003.

“So we are very fortunate to have two senior judges who are not required to maintain the level of caseloads they are maintaining but are willing to do so,” Lisi said. “That helps us enormously. We have a culture here in Rhode Island where senior judges remain active and continue to carry fairly heavy caseloads.”

Lisi said she and Judge Smith have found they are somewhat busier in handling the initial phases of newly filed cases, but it will be a while before those cases reach a point that produces a significant increase in their workloads.

Selya agreed that the District Court is fortunate to have two senior judges handling a lot of cases. “They are on senior status, working out of the kindness of their hearts. They could leave tomorrow and have full salary for life,” he said. “God bless Judge Torres and Judge Lagueux, but it isn’t fair to place that kind of burden on them.”

Selya noted that the District Court has three active judgeships, saying, “The fact that we are down one judge means we are operating at 66 percent of what Congress thought this federal court needed.”

Also, Selya cited the significance of cases handled in the U.S. District Court in Providence, such as The Station fire litigation and the prosecution of former Roger Williams Medical Center executives.

“You have a caseload here that is critically important to how this state operates and to the welfare of the citizens here,” he said. “And to face that caseload when the allotted work force is cut by one-third is serious.”

efitzpat@projo.com