Law limits court to 1 Moody; dad poised to step down
When Pulaski County Circuit Judge Jay Moody was nominated in late July to fill a vacancy on the federal bench in Little Rock, some legal observers figured there would soon be two Judge Moodys presiding in the same courthouse.
But as it turns out, the prospect of a father and son holding court simultaneously in a federal courthouse in Little Rock — or anywhere, for that matter — isn’t possible because of a federal nepotism law.
U.S. District Judge James Moody, who by the end of this week will have been on the bench in the Eastern District of Arkansas for 18 years, confirmed last week that if and when his son’s presidential appointment is confirmed by the U.S. Senate, he will be forced to resign his own lifetime commission.
Since October 2008, the elder Moody, now 73, has been on senior status, a form of semi-retirement that allows him to continue working with a lighter caseload. But a federal statute, found in Chapter 28, Section 458 of the U.S. Code, prohibits even senior-status judges from serving alongside anyone who is closer than a cousin on the same court.
The statute also came into
play when Stephen Limbaugh Jr., then a Missouri Supreme Court judge, was appointed in 2008 to a federal judgeship in St. Louis that had been vacated by another judge taking senior status. His confirmation forced the retirement of his father, U.S. District Judge Stephen Limbaugh Sr.
The issue also came up in 2007 in the Middle District of North Carolina at Greensboro, when William Lindsay Osteen Jr. filled the seat left by his father, U.S. District Judge William Lindsay Osteen Sr., who had been on the bench since 1991 and had taken senior status in 2006. The elder Osteen died Aug. 9, 2009.
The law, which applies generally to employees of federal agencies, had existed for many years, but was amended in 1998 after a dustup caused by President Bill Clinton’s 1996 nomination of William Fletcher to the 9th U.S. Circuit Court of Appeals in California.
Fletcher’s mother, Betty, was an active judge on the same circuit, which raised complaints about nepotism. Although Betty Fletcher agreed to take senior status to resolve the matter, Congress later tinkered with the law to ensure that relatives of senior-status judges were covered under it, as well.
Before complaints arose about the law, Little Rock brothers Richard and Morris Arnold served side by side on the 8th U.S. Circuit Court of Appeals, based in St. Louis. Richard Arnold, now deceased, was appointed in 1980 by President Jimmy Carter, while Morris Arnold, who retired this month, was appointed two years later by President George H.W. Bush.
Decades earlier, cousins Learned Hand and Augustus Hand served together on both the U.S. District Court for the Southern District of New York and the 2nd U.S. Circuit Court of Appeals.
The situation has stirred a mixture of feelings in the elder Moody, who says he still enjoys his job but is also immensely proud of his son.
“If it were anyone other than my son, I would be disappointed,” James Moody said. But he said the pride and joy he feels about his 48-yearold son’s nomination outweighs his disappointment of leaving behind his own job. “On balance, I’m happier that my son is being considered,” he said.
He pointed out that his son’s nomination hasn’t yet been discussed by the Senate Judiciary Committee, which must approve it before the full U.S. Senate considers confirming him as a federal judge.
He said he doesn’t know yet what he will do, assuming his son is confirmed, other than play more golf and tennis, and go fishing more.
Federal judges who are on senior status are encouraged to travel to other districts to fill in for other federal judges as needed. But semi-retirement is different than resigning a judicial commission, which Moody must do if his son is confirmed.
He said losing his commission would prohibit him from continuing to serve as a federal judge in any capacity. However, he would retain his full pay and benefits.
Michael Teague, a spokesman for U.S. Sen. Mark Pryor, D-Ark., said Friday that in March, when Pryor recommended Moody and three other attorneys as potential replacements for U.S. District Judge Susan Webber Wright, who announced she was taking senior status in August, “We were all aware of the family rule, and they were all OK with that.”
Teague said that as of Friday, a date hasn’t been set for the Judiciary Committee to consider the younger Moody’s nomination, but “we’re hopeful it will be soon,” possibly even this month.
On Wednesday, the committee met in Washington and discussed the nomination of Timothy Brooks, 49, of Fayetteville, whom President Barack Obama nominated in June to fill a federal judgeship vacancy in the Western District of Arkansas. Brooks was one of five judicial nominees who appeared before the committee; the others have been nominated for posts in California, Puerto Rico and the District of Columbia.
The committee didn’t take action on Brooks’ nomination, but members heard from Pryor and U.S. Sen. John Boozman, R-Ark., who jointly praised his experience, temperament and reputation. That same nonpartisan support exists in Jay Moody’s situation.
When James Moody took senior status in October 2008, that created a full-time judgeship vacancy that was filled in May 2012 by Kristine Baker, another Obama nominee who is the newest member of the federal judiciary in the Eastern District. Baker had once clerked for Wright.
James Moody said last week that he doesn’t know yet when — or even if — he will be permanently leaving the bench, but if he leaves, it will coincide with his son being sworn in.
Moody said “it would make sense” for his son to take over his current chambers on the fourth floor of the federal courts building in Little Rock and perhaps his docket as well. That, however, would be up to the other judges of the court, Moody said, before flashing a smile at the suggestion of leaving behind a few trappings for his son in the chambers. He noted that among the many photographs lining his bookshelves, Jay Moody is already there.