SIOUX FALLS The long-stalled process of naming two new federal judges to South Dakotas U.S. District Court is expected to speed up in January 2024, with Sioux Falls lawyer Eric Schulte atop the names being considered for a lifetime appointment.
South Dakota News Watch interviews with people involved in the process reveal fresh urgency to negotiations between President Joe Bidens administration and Republican U.S. Sens. John Thune and Mike Rounds to find candidates agreeable to both sides.
Schulte, a litigation lawyer with Davenport Evans and former president of the State Bar of South Dakota, could be nominated by Biden as early as January. The nomination is sent to the Senate Judiciary Committee and then must be confirmed by majority vote on the Senate floor.
Schulte, a graduate of the University of South Dakota School of Law, has practiced at Davenport Evans since 2000, focusing on general civil litigation, insurance defense, and commercial and complex litigation. He did not respond to a request for comment from News Watch.
Chief U.S. District Judge Roberto Lange could not comment on the nomination process but told News Watch that any action on the vacancies would be welcomed because of the states increasingly crowded federal docket.
The District of South Dakota has started bringing in judges from other states to relieve the strain on current judges that stretches back more than two years, when Judge Jeffrey Viken of Rapid City announced his retirement timeline.
U.S. District Judge Daniel Hovland of North Dakota and U.S. District Judge James Moody of Arkansas have presided over recent criminal trials in Rapid City.
Were doing everything we can to keep up, said Lange. Were responsible for our own district, and (using judges from other states) is obviously not ideal or sustainable long-term. Were doing the best we can.
South Dakotas district has four divisions: southern in Sioux Falls, northern in Aberdeen, central in Pierre and western in Rapid City. It handled 822 criminal and civil cases combined in 2022, said Matt Thelen, clerk of courts. That number is up to 854 in 2023 through Dec. 20.
Viken announced his retirement in September 2021 but took senior status, a process by which qualified judges assume a reduced workload and create a federal vacancy. He kept most of his criminal cases while his civil docket was distributed among other judges.
Viken fully retired at the end of September 2023, meaning all the Western Divisions criminal cases fell to the other judges, creating the need for occasional help from out of state.
Indian Country jurisdiction makes the Western Division a unique and busy docket, with the division encompassing nearly 40% of South Dakotas federal criminal cases filed in 2023.
Those criminal cases have been distributed among active judges: Lange in Pierre and Aberdeen, U.S. District Judge Karen Schreier in Sioux Falls, and two district judges on senior status, Lawrence Piersol and Charles Kornmann. Kornmann, 86, and Piersol, 83, have been on senior status for more than a decade and dont work a full caseload, taking time off in the winter months.
Schreier announced in January 2023 that she plans to retire and take senior status upon the confirmation of her successor. That means there are two seats to be filled out of three available active judgeships in the South Dakota district.
We have two senior judges handling a significant number of cases and the current active judges handling a crushing number of them, said Neil Fulton, dean of the University of South Dakota School of Law, who served as chief of staff under former Gov. Mike Rounds. I hope that everyone who has a say in this remains focused on identifying mutually acceptable candidates that can move forward.
Political realities have shaped the process in South Dakota.
Biden, a Democrat up for re-election in 2024, is assessing vacancies in a heavy Republican state that already has a stable of Democratic-chosen lifetime appointees from the Bill Clinton and Barack Obama presidencies.
Of the active judges, Schreier was appointed by Clinton and Lange by Obama. Kornmann and Piersol were appointed by Clinton.
Biden has a razor-thin Senate majority that makes it necessary to consult with Thune and Rounds to identify agreeable candidates. Judicial nominations typically go through a Senate tradition known as the blue slip, which allows home-state senators to weigh in on whether the nominee should move forward.
Thune and Rounds did not respond to requests for comment through their offices for this story.
Complicating the process is the lack of a Democratic Party standard-bearer in South Dakota to shepherd the process of identifying, recommending and championing qualified candidates.
In most states, the recommendation process would be handled through the office of a Democratic statewide officeholder, as when then-Sen. Tim Johnson shepherded the 2009 appointments of Viken and Lange under the Obama administration.
With no statewide elected Democrats in South Dakota, the task fell to Randy Seiler, a former U.S. attorney and South Dakota Democratic Party chair who died in April 2023.
His top choice fell through in April 2021 when former U.S. Rep. Stephanie Herseth Sandlin announced her intention to remain as president of Augustana University in Sioux Falls.
Dan Ahlers, executive director of the South Dakota Democratic Party, told News Watch that he has met with potential candidates for the federal bench as he tries to steer the party through recent leadership changes.
Ahlers and party chairman Shane Merrill traveled to Washington earlier this month to meet with Democratic National Committee staff. They have sought an open channel with the White House Counsels Office to establish timelines for judicial nominations.
Weve got to have a judge West River who knows the needs of the area and understands the differences in cultures, said Ahlers, a former state legislator and U.S. Senate candidate from Dell Rapids.
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