The federal courthouse in Sioux Falls. (John Hult/South Dakota Searchlight)
The South Dakota Democratic Party has recommended a judge for a lifetime appointment to the federal bench in Rapid City.
Veronica Duffy, 58, has served as a U.S. magistrate judge since 2007, initially in the Western Division of the U.S. District Court of South Dakota. Duffy currently works in the Southern Division, which is headquartered in Sioux Falls.
Magistrate judges handle pretrial motions and hearings, but district judges typically preside over trials. Magistrates are also appointed to four-year terms, whereas district appointments are for life.
State Democratic Party Chair Randy Seiler confirmed on Monday that Duffy’s name was initially forwarded to the White House earlier this year, and that her name was sent once again after the general election.
Discussions about a replacement for retiring U.S. District Judge Jeffrey Viken had been influenced by the prospect of a potential Republican majority in the U.S. Senate – a majority that may have made it more difficult to secure a vote on President Joe Biden’s judicial nominees.
Based on the vetting process, this is one of the top prospects in our state to replace Judge Viken in terms of her knowledge and experience of the federal judicial system. – Randy Seiler, chair of South Dakota Democratic Party
Based on the vetting process, this is one of the top prospects in our state to replace Judge Viken in terms of her knowledge and experience of the federal judicial system.
– Randy Seiler, chair of South Dakota Democratic Party
Senate Democrats maintained their razor-thin majority on Election Day, though, meaning the party went into the lame duck session on Monday without the urgency to confirm judicial nominees that would have come with a looming Republican majority when the new Congress convenes in January.
Duffy’s recommendation is not an assurance of success, but Seiler said the party is confident in her credentials and qualifications. Duffy graduated from Creighton Law School in 1992, clerked for U.S. District Judge Richard Battey, and worked in private practice prior to 2007.
“She’s incredibly qualified, she’s been a United States magistrate judge for years, she’s a huge intellect, and we think she’s an excellent choice,” Seiler said. “Based on the vetting process, this is one of the top prospects in our state to replace Judge Viken in terms of her knowledge and experience of the federal judicial system.”
Duffy’s name was not the first to appear publicly in discussions about the open judgeship.
The appointment process for any lifetime seat on the federal bench often begins with recommendations from senators in states with vacancies – provided those senators are from the same party as the president.
In South Dakota, as in other states with no Democratic senators, the state Democratic Party has traditionally passed along the names of potential nominees to the White House for consideration when the sitting president is a Democrat.
Viken, for example, was the first appointee by then-President Barack Obama in 2009 after a recommendation by the party. In October 2020, he announced his intent to retire in 2023.
Seiler confirmed in early 2021 that his party had submitted names, but had not confirmed any specific name until Duffy’s.
Meanwhile, the open seat has been the subject of public discussion.
The Biden administration has prioritized the appointment of women and people of color to federal judgeships, to improve diversity on the federal bench.
Former U.S. Rep. Stephanie Herseth Sandlin was among those rumored to have been recommended for the federal judgeship, but the president of Augustana University announced that she wouldn’t be leaving her post at the school in April 2021.
At least two other nominees spoke publicly about the seat in 2021: Tracy Zephier, the attorney general for the Cheyenne River Sioux Tribe, and Sarah Collins, an assistant U.S. attorney who is a member of the Oglala Lakota Tribe.
Both told reporter Tom Lawrence in early April 2021, prior to Herseth Sandlin’s announcement that she would not seek a federal position, that they were interested in the job. Native Sun News endorsed Collins in April 2021.
In October, Collins said she did not wish to comment on the nomination; Zephier did not return calls and emails seeking comment.
The wait for a new judge to fill Viken’s seat at the top of the Western Division has been long, and has forced some shuffling of work across the federal docket, according to Clerk of Courts Matt Thelen.
Since Viken’s announcement, all but one of his civil cases have been reassigned to other judges, Thelen said. Those judges include the district’s Chief Judge Roberto Lange and Judge Karen Schreier, who oversees the Southern Division, as well as Eighth Circuit Court of Appeals Judge Jonathan Kobes.
Viken, 70, is still handling criminal cases. Thelen said the changes have yet to create scheduling troubles, but told South Dakota Searchlight in October that a nomination would be a welcome development.
“We are working to administer timely and proper justice to the full extent possible,” Thelen said. “We are grateful that Judge Viken is continuing to hear criminal cases, at least for now. We look forward to the nomination of a capable replacement judge when the administration does so. We very much hope that nomination comes soon.”
Viken said he plans to stay and assist at the federal courthouse in Rapid City until Oct. 1, 2023, regardless of whether his replacement earns an appointment in the U.S. Senate.
“The second floor is all set up,” Viken said. “Visiting judges come in and use that space and the courtroom. I would simply move down there and continue working until October 1.”
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