2012-10-26 / Front Page

Wait nearly over for Cape lawyer

By Jack Flagler
Staff Writer

CAPE ELIZABETH — Personal anecdotes are a well-worn campaign tactic for presidential nominees in every election, and for good reason. At the Hofstra University presidential debate on Tuesday, Oct. 16, college student Jeremy Epstein asked the candidates the first question of the night, about finding a job after graduation. After the debate, Epstein became a minor celebrity because his story is easy for voters to understand and relate to, whereas unemployment percentage statistics on a piece of paper may not be.

Personal stories like Epstein’s are everywhere, and both President Barack Obama and Mitt Romney frequently bring up these anecdotes to make a point that will hit home with voters. But not many individuals can say the 2012 election will have the personal effect on them that it does for Cape Elizabeth resident William Kayatta.

Kayatta is a partner with the Portland law firm Pierce Atwood LLP. He was appointed by President Barack Obama to the United States Court of Appeals for the 1st Circuit in January, after Judge Kermit Lipez chose to accept senior status and reduce his caseload.

Ten months later, Kayatta is still awaiting confirmation from the U.S. Senate.

This summer, the U.S. Senate invoked the “Thurmond Rule,” an unwritten tradition it has implemented in election years for decades. The tradition, named for the late longtime South Carolina Sen. Strom Thurmond, allows the Senate to put the confirmation process for appellate court appointees on hold through a presidential election.

Carl Tobias, a professor at the University of Richmond School of Law and an expert on the appellate court system, said the process has been implemented on both sides of the aisle in years past, but Senate Republicans made the decision to block Obama’s appellate court nominees earlier than usual this year. Senate Minority Leader Mitch McConnell, (R-Kentucky) announced June 13 he would invoke the rule.

The reasoning behind the rule, Tobias said, is to prevent an outgoing president from making numerous appointments before leaving office, thus taking away some of the incoming president’s ability to appoint his own nominees.

“The party out of power may not want to confirm somebody if the will of the people is such that Obama should no longer be president,” Tobias said.

But Tobias argued the rule should not apply in Kayatta’s case. Both Maine’s Republican Senators, Susan Collins and Olympia Snowe, supported Kayatta’s confirmation, and he has received almost universal praise for his work as a lawyer.

Calien Lewis is the executive director of the Maine Bar Foundation, where Kayatta previously served on the board of directors. The Maine Bar Foundation honored Kayatta with its Dana Award in 2010 for what Lewis called “outstanding contributions to the profession as the mission of the bar foundation characterizes it.”

Lewis said Kayatta has worked in numerous pro bono cases on behalf of disadvantaged and low-income individuals throughout his career, and she believes he is an excellent candidate for the 1st Circuit.

“He’s a brilliant mind,” Lewis said. “Whenever we in the legal community have a question we still call Bill, not only because we know he will work with us, but because we know he is well-regarded nationally for his legal acumen and ability to think legally.”

“Bill is a brilliant lawyer who will be a superb addition to the court,” added Judge Lipez in an email.

The 1st Circuit is the smallest of the 10 appellate courts in the United States, with six judges and three senior judges. The judges on the appellate court hear appeals on decisions from U.S. District Courts in Massachusetts, Rhode Island, New Hampshire and Puerto Rico. By comparison, the 10th Circuit Court of Appeals, based in Denver, includes 10 judges and 10 senior judges.

Senate Majority Leader Harry Reid (D-Nevada) attempted to force a cloture vote in July to approve one of Obama’s appointees to the 10th circuit, Robert Bacharach of Oklahoma. A cloture vote allows the Senate to push through a vote on a matter it has tabled, but the motion to invoke cloture fell four votes short of the necessary 60.

Although Lipez accepted senior status on the 1st Circuit nearly a year ago, he continued to accept a full caseload through much of 2012, a move Tobias called “gracious.”

However, beginning in September, Lipez reduced his caseload to three-quarters of its original volume, leaving the 1st Circuit short a judge.

“It is important that the confirmation process be finalized as soon as possible. In order for our court to meet its responsibilities, it is essential that we have our full complement of active judges,” Lipez wrote.

The delay in Kayatta’s appointment puts an added burden on the remaining judges, but it also means Maine currently has no representation on the 1st Circuit. Lipez is from South Portland. He was appointed to the court in April 1998 after President Bill Clinton nominated him in October 1997 in a process Lipez called “straightforward.”

The U.S. Senate only has pro forma sessions, with no official business conducted, scheduled until after the November elections. At that point, it will reconvene for its lame duck session, with many senators leaving in 2013.

Tobias said that makes Kayatta’s appointment uncertain. If President Obama wins re-election and Democrats hold the Senate, he said Republicans “may well agree” to hold a vote to confirm Kayatta’s appointment. But if Mitt Romney assumes the presidency and Republicans take the Senate majority, Tobias doubts the Senate would confirm appellate nominees in the lame duck session.

The one thing that is certain, Tobias said, is that if a vote is ultimately held to appoint Kayatta, he will be overwhelmingly confirmed.

Kayatta declined comment for the story. But when election results begin coming in on Tuesday, Nov. 6, it’s likely safe to say he will be watching closely.

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