A regular Source column, Undercurrents explores issues, ideas and events developing beneath the surface in the Virgin Islands community.
The death of Supreme Court Justice Antonin Scalia two weeks ago turned national attention on the presidential appointment of federal judges and the potential for political factors to stalemate the process.
That’s nothing new to Virgin Islanders.
Judge Curtis Gomez’s appointment to the federal District Court in the territory expired more than a year ago, and while insiders say there have been some names floated as his possible replacement, it’s looking more and more like President Barak Obama will leave the appointment to his own successor.
Meanwhile, as provided for in the law, in order to keep the court functioning as normal, Gomez continues to serve.
In deciding on an appointment to a federal bench, the White House seeks input from a vast array of individuals and organizations, both within and outside the given jurisdiction.
One of those groups is the American Association for Justice and, in this instance, another is the Virgin Islands Trial Lawyers Association. St. Croix attorney Lee Rohn is a member of the former and president of the latter.
“We have commented on people being suggested and we have recommended people,” Rohn said, indicating that there has been at least some movement on the issue. Names of people under consideration are strictly confidential.
Rohn said she has been working behind the scenes to try to get the president to make an appointment, but given the way Congress has refused to consider many of his previous nominations, he may not want to take on another fight before the presidential election in November, even one involving such a small jurisdiction as the Virgin Islands.
“I wouldn’t be optimistic,” Rohn said, “but it doesn’t keep us from trying.”
Former VI Delegate Donna Christensen concurred.
“I really don’t see anything happening this year,” she said, citing the same political impasse as Rohn.
Christensen said she tried to get action on the appointment before it even became an issue. Over the years, she has had input on several federal appointments, both to the U.S. Attorney’s Office and to District Court.
“I always thought it was important to find a local person” to fill those positions, she added.
“I did support his (Gomez’s) reappointment … I did communicate on his behalf with the White House,” she said. That was before his term ended and before she vacated her seat to run, unsuccessfully, for governor.
About the time Gomez’s term actually expired, the White House signaled that he would not be reappointed, Rohn said, adding that her efforts to push for a new appointment began then.
Virgin Islands District Court judges serve a 10-year term. Gomez came to the bench Jan. 3, 2005, meaning his term ended at the start of 2015.
Attorney Russell Pate, president of the V.I. Bar Association, filed a complaint last year, arguing that Gomez had to stop hearing cases since his term had expired.
“The functioning of the courts is very important,” Pate said in an interview last week. Any delay in filling vacancies is detrimental. “It’s just at the expense of the general public.” Quoting the old adage, he added “Justice delayed is justice denied.”
The complaint may have been intended to provoke action by the White House, but it appears to have failed. One attorney described it as “frivolous” since the law provides for a judge to continue to serve until replaced.
There also is precedent for such service. Judge Thomas K. Moore ‘s term ended in June 2002, and he was not replaced until Gomez put on his judicial robes in January 2005.
Pate said the complaint was issue-driven and not meant as a personal criticism.
“Judge Gomez is an exceedingly qualified jurist,” Pate said. “We hope we get another” like him. “It’s unfair to have a jurist who’s sitting in limbo.”
Gomez did not respond to requests for comment.
Pate said the Bar Association has not been asked to recommend anyone, nor has it been asked to assess any person who is under consideration for appointment.
He, Rohn and Christensen all described the appointment process as highly political.
The three top local officials central to the vetting process all avoided comment.
Gov. Kenneth Mapp responded to inquires via an email from Government House spokesman Sam Topp, saying he considers the appointment “solely the purview of the president of the United States.” Asked if that means the governor has not offered recommendations or comments on potential nominees, Topp replied there was “nothing to add” to the initial response.
A spokesman for Delegate Stacey Plaskett first said she would call with comments and then that she would issue a statement, but five days later she had done neither, despite repeated requests.
District Court Chief Judge Wilma Lewis did not respond to inquiries left with her law clerks on two separate occasions.
The situation highlights a difference in the justice system in many territories and that in the 50 states. Federal judges in the states are appointed for life and so don’t have to stand for reappointment . They serve until they retire, although they can be removed for cause. Judges in most territories serve 10-year terms.
Pate said Puerto Rico was successful in getting a change from limited to lifetime appointments, but “we’re still stuck at 10 years.”
At the time Gomez was formally elevated to the bench in 2005, Christensen announced she was introducing a bill to give V.I. District Court judges lifetime tenure, but the move failed to get enough support.
Asked her stance on tenure, Rohn said, “That’s not something I’m working on. We’re having a hard enough time getting an appointment.”
District judges earn $203,100 annually as of 2016, according to the website of the United States Courts.
(Bernetia Akin can be reached by email at [email protected])