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This story was published Oct, 9, 2009
Mecklenburg Superior Court Judge Albert Diaz of Charlotte appears to be moving toward a White House nomination to the U.S. 4th Circuit Court of Appeals, where he could become the court's first Hispanic judge.
The nomination, one of two possible for North Carolina, could help break a 15-year impasse that's created the longest appellate vacancy in the country and left the state under-represented on the powerful court.
The FBI is conducting a background check on Diaz, who in 2001 became the first Hispanic to serve on North Carolina's Superior Court. The American Bar Association also is evaluating him.
Diaz, 48, declined to comment.
"Everybody who has looked at him has given him exceptionally high marks," says former N.C. Supreme Court Chief Justice Burley Mitchell, who chaired a panel that screened potential federal judges.
"He's an extraordinary person, kind of an American success story. I have never heard anything but praise for his ability ... his temperament and compassion. He's cool, level-headed and fair."
The ABA has sent letters to federal judges asking their opinions about Diaz. The ABA will report to the White House whether Diaz is well qualified, qualified or not qualified for the federal judgeship.
N.C. Court of Appeals Judge James Wynn of Cary is also widely expected to be nominated by President Obama to the federal appeals court. It would be Wynn's second attempt at the 4th Circuit, which hears appeals from the Carolinas, Virginia, West Virginia and Maryland.
Obama could nominate either or both Democrats to the 4th Circuit, widely regarded as the most ideologically conservative appeals court in the country. Carl Tobias, an expert on the 4th Circuit, says it's unclear without analyzing their opinions how either potential nominee might change that.
Five vacancies on bench
Wynn is one of four N.C. judges nominated by two presidents for a vacancy created in 1994 on the Richmond-based appeals court. The nominations - including that of U.S. District Judge Bob Conrad of Charlotte in 2007 - all fell victim to partisan politics in the U.S. Senate, which must confirm all federal judges.
President Clinton first nominated Wynn in 1999, only to have him blocked by then-U.S. Sen. Jesse Helms, whose own judicial nominees also had been scuttled.
There are currently five vacancies on the 15-member court, though two - from Virginia and Maryland - are close to being filled.
Tobias, a law professor at the University of Richmond, says no appeals court in the country has as many vacancies. Because the 4th Circuit is "the court of last resort for 99 percent of cases" from the five Mid-Atlantic States, he says, the vacancies can slow the delivery of justice to a lot of people.
Though it's the largest in population of the five states, North Carolina has only one judge - Allyson Duncan - on the 4th Circuit Court. South Carolina has claimed as many as four seats, two of which are vacant.
Sen. Kay Hagan, the only Democratic senator in the Carolinas, has said she'll push to get North Carolina an additional seat and "the representation it deserves." That could come at the expense of South Carolina.
"North Carolina can argue that its population justifies it having more than 2 of 15 judges," says Tobias. "Obama could nominate two (people) from North Carolina."
Neither of the state's U.S. senators has announced support for any potential nominee.
On a conference call with reporters this week, Hagan said she's "working with Sen. (Richard) Burr and President Obama and White House counsel to ensure North Carolina has adequate representation on the 4th Circuit."
Burr, a Republican, could object to any nominee. But spokesman David Ward said the senator is "pleased that the process is moving forward and we look forward to finally filling this vacancy."
Former military man
Diaz grew up in Brooklyn, N.Y., the son of divorced Puerto Rican parents. His mother raised him and his two brothers. He enlisted in the Marines after high school. He went on to get a bachelor's degree in economics from the University of Pennsylvania's Wharton School, an MBA from Boston University and a law degree from New York University.
In the Marines, he served as a prosecutor, defense lawyer and judge during his 25-year military career. He left the service in 1995 for private practice. He made a name for himself at the law firm of Hunton & Williams representing Philip Morris during tobacco lawsuits in the late 1990s.
"I don't smoke and, frankly, think that tobacco is harmful to society," he once said. But "our system only works if advocates are willing to stand up and fight for a client's rights regardless of what moral opposition they may have to a particular issue."
Diaz became the first Hispanic to serve as a Superior Court judge in North Carolina when then-Gov. Mike Easley appointed him to the bench in 2001. At the time, he was specializing in complex commercial litigation with Hunton & Williams.
Diaz ran for election the following year and lost. A month later, Easley again appointed him to a Superior Court judgeship. In 2005, then-N.C. Chief Justice Beverly Lake appointed him Charlotte's first Business Court judge. One of three in the state, the courts handle highly complex business cases.
Last year, for example, Diaz presided over a Wachovia shareholder's lawsuit opposing the bank's sale to Wells Fargo. He rejected the suit, which paved the way for Wells to buy the Charlotte bank.
He has been involved in other high-profile cases. Last month, he ruled that Demeatrius Montgomery was competent to stand trial for the 2007 killings of two Charlotte-Mecklenburg police officers.
Charlotte lawyer Jim Cooney had been considered for the 4th Circuit Court and was interviewed by the White House counsel. But Cooney apparently is no longer in the running for the lifetime appointment.
"Judge Diaz is a wonderful choice," Cooney says. "He'll be a great judge for a very long time."
Wynn, 55, is African American. Nominating him and/or Diaz would fit a pattern.
Obama chose Sonia Sotomayor as the first Hispanic Supreme Court nominee. Of the 10 appeals court judges he has appointed across the country, three are African American, one Asian American and four are women. Allyson Duncan is one of two women and the only black judge on the 4th Circuit.
Tobias wouldn't be surprised if either Wynn or Diaz is chosen.
"The president has nominated a number of minority candidates," Tobias says. "A fairly high percentage of his appellate nominees and even higher percentage of his district nominees are people of color."
