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If U.S. Magistrate David Nuffer becomes Utah's newest federal judge, his path to a lifetime appointment of deciding disputes will be an increasingly common one: magistrates are more often being appointed to federal judgeships.
"There are a number of magistrate judges appointed," said Carl Tobias, a University of Richmond law professor who studies judicial appointments. "It makes sense. They have a record. They have relevant experience. Obviously, the judges in the district are comfortable with them because they are the ones that appoint them for eight years."
Yet Nuffer — nominated by President Barack Obama earlier this month to fill a district court judgeship vacated in 2009 by a retiring judge, Dale Kimball — stands to become part of a larger debate about whether magistrates becoming judges comes with some downfalls.
"We have fewer and fewer people who come out of law firms and go on the bench. That is a loss of diversity that some people believe is very valuable," Tobias said.
According to Tobias' recent research, 22 out of 112 nominees for open federal judgeships previously served as magistrates, or judges who assist district court judges by hearing different cases. Tobias said Obama has nominated more magistrate judges to become district court judges than did former presidents George Bush and Bill Clinton.
Nuffer finds himself with a wide range of support in Utah as he wades through the confirmation process.
"I'm thrilled about the nomination of David Nuffer to fill the district court vacancy," said Sen. Mike Lee, a Republican who sits on the Senate Judiciary Committee, along with Sen. Orrin Hatch, R-Utah. "He has a solid record as a magistrate judge. He's well-liked by litigators of every stripe and he's well-known for being a fair-minded judge who has a solid background in law."
Lee said he and Hatch both returned "blue slips" to the president —a sheet of paper endorsing Nuffer to become the state's next district court judge. That paves the way for Nuffer to go before the Senate Judiciary Committee for questioning in coming weeks, an event Lee predicts will happen in September, following an August recess for lawmakers.
Lee said he's hopeful Nuffer will pass through confirmation and be able to start his judgeship later this fall.
But even if Nuffer eases through the confirmation process, Utah is still left with another vacancy on its federal bench —a fact many attorneys —and that Lee admits — is troubling.
"I'm anxious to get the other position filled," Lee said. "The vacancies have been open for awhile and it puts a strain on our judicial system, anytime they are operating with less than a full complement of judges."
Utah's judicial shortage on the federal bench comes when case filings in federal court overall are up significantly in 2011 compared to 2010, said Mark Jones, U.S. District Court Clerk of Court. Cases may continue to pile up without all of Utah's five full-time District Court judgeships filled.
"We still think that it is imperative that the administration completes filling the open position," said Utah State Bar President Robert Jeffs. "Even just one vacancy, that is 20 percent of the federal judges in our district. That is a significant loss of the judges there."
The second opening on Utah's federal bench occurred in January when Judge Tena Campbell achieved senior status —a form of semi-retirement awarded to long-serving judges, allowing her to take on fewer cases. And if Nuffer is confirmed, district court judges will need to elect someone to replace him as a magistrate. The reduced number of federal judges in Utah right now is problematic for several reasons, Jeffs said.
Judges such as Kimball and Campbell, who have earned the right to reduced case loads, are taking on more work just to keep the system afloat, Jeffs said. In November, Kimball, for example, presided over the six-week trial of Brian David Mitchell, who was convicted of the 2002 kidnapping and rape of Elizabeth Smart. All four senior judges on the federal bench continue to take prominent cases.
The shortage of district judges has also led magistrate judges, who typically hear misdemeanors and prepare other cases for trial, to pick up additional cases. The court suffered another blow when Judge J. Thomas Greene, who served part time as a federal judge with senior status, died earlier this year.
With three people currently trying to do the work of five district judges in a time when case filings are increasing, a logjam of cases occurs, Jeffs said. Often civil cases take the hit, since criminal cases have federally imposed time limits in which they have to move through the court system.
Utah's long-standing vacancies mirror a national trend, said Tobias. In a February analysis, he calculated that the judicial vacancy rate has hovered at 11 percent during Obama's tenure — much higher than the 4 percent vacancy rate during the Bush administration but about the same as the 10 percent vacancy rate under former President Bill Clinton.
But there has been some movement on nominations from Obama in recent months, including the nomination of Nuffer.
Nuffer started as a part-time magistrate in St. George in 1995 and moved to full time in 2003. Before that, he worked as an attorney for 24 years at the law firm Snow Nuffer, focusing on real estate and municipal law.
He graduated from Brigham Young University's law school in 1978. Nuffer served as president of the Utah State Bar for a year in 2000 and was a member for three years on the Utah Judicial Conduct Commission. He also has extensive experience in consulting, serving as a curriculum developer for the Leavitt Institute for International Development Rule of Law Program in Ukraine.
Nuffer is an adjunct professor at BYU's law school and works in curriculum development for the Federal Judicial Center.
He declined to comment on his nomination through a clerk, saying he wants to respect the confirmation process. His appointment needs the approval of the U.S. Senate's Judiciary Committee and then the full Senate.
On his public profile on the social networking site Linked In, Nuffer states his professional objective as "Working to improve efficiency and responsiveness of the court in times of budget constraints and rising case loads." He lists his specialties as "use of technology in judicial work, process redesign, technology training and judicial ethics and discipline."
Lee, a freshman senator, said he's committed to seeing that the other vacancy on Utah's federal bench is filled. The senator's hands are tied somewhat until Obama decides to move forward with nominations submitted to him.
Jeffs said Utah's state and federal bars will continue lobbying efforts to remind lawmakers that while one nomination to Utah's federal bench is a start, it is not enough.
Tobias agrees.
"You want to have all of your active judges in place," he said. "With Utah having two senators on the Senate Judiciary Committee, it should go more quickly."
Twitter: @mrogers_trib —
Larger case loads
— Each of Utah's three active federal district judges currently handle 341 civil and 128 criminal cases on average each year.
— Four senior judges are each handling 137 civil and 47 criminal cases.
— Five magistrates are each handling 26 civil cases and 44 criminal matters, in addition to preparing cases to go before a district judge.
Source: Federal Judicial Center, Utah's U.S. District Court, Utah State Bar, Utah chapter of the Federal Bar Association. —
Federal case filings on the rise
Civil, up 25 percent
July 2010-January 2011: 905
2010: 724
Criminal, up 24 percent
July 2010-January 2011: 986
2010: 796
Source: » Utah's U.S. District Court