Stu Whitney / South Dakota News Watch
SIOUX FALLS, S.D. – Another candidate has emerged in the quest to seat two new federal judges on South Dakota’s U.S. District Court, adding momentum to filling vacancies that have frustrated the legal community for more than two years.
Camela Theeler of Sioux Falls, a state circuit court judge and former assistant U.S. attorney, is under consideration for a lifetime federal appointment by President Joe Biden’s administration, according to News Watch analysis and interviews with political and legal representatives.
Theeler, 48, joins Sioux Falls lawyer Eric Schulte as candidates designated by Republican U.S. Sens. John Thune and Mike Rounds as acceptable choices for the South Dakota district. The expected nominations come at a time when out-of-state judges have been enlisted to relieve the strain on a crowded federal court docket.
Schulte has passed the vetting process and Theeler is being reviewed. Their nominations could come together in February, followed by Senate Judiciary Committee hearings and a Senate confirmation vote. Official appointments could stretch into early spring, given the uncertainties of the Senate calendar.
Theeler is a Pierre native who graduated in 2000 from the University of South Dakota School of Law. She worked in private practice with Lynn, Jackson, Schultz & Lebrun in Sioux Falls before being named assistant U.S. attorney in the civil division of the U.S. attorney’s office in 2012.
In 2018, she was appointed by former Gov. Dennis Daugaard as a judge in South Dakota’s Second Judicial Circuit, which serves Minnehaha and Lincoln counties.
Theeler did not respond to a request for comment from News Watch.
Senators’ approval speeds process of appointing judges
The Schulte and Theeler federal candidacies come after months of negotiation between White House representatives and the offices of Thune and Rounds, with each senator proposing two names for consideration.
That arrangement reflects the political reality of appointing judges in a Republican-controlled state under a Democratic administration in a presidential election year. The involvement of Thune and Rounds – and the fact that Schulte and Theeler are viewed as more politically centrist than extreme – is expected to expedite a confirmation process that had previously stalled.
“Regardless of the applicant, when you get alignment of the home-state senators, that just makes it so much easier,” said Neil Fulton, dean of the University of South Dakota School of Law, who served as chief of staff when Rounds was governor. “I mean, looking back historically at South Dakota judges, you’ve seen instances where that’s the case and those nominees just fly through.”
Chief U.S. District Judge Roberto Lange could not comment on the nomination process but told News Watch in December 2023 that any action on the vacancies would be welcomed because of the state’s increasingly crowded federal docket.
“We’re doing everything we can to keep up,” Lange said at the time.
South Dakota federal courts handled 931 cases last year
South Dakota’s district has four divisions: southern in Sioux Falls, northern in Aberdeen, central in Pierre and western in Rapid City. The federal courts handled 931 criminal and civil cases combined in 2023, up from 822 the previous year.
U.S. District Judge Jeffrey Viken of Rapid City 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 Rapid City criminal cases fell to the other judges, creating the need for occasional help from out of state. Indian Country jurisdiction makes it a unique and busy docket, with the western division encompassing nearly 40% of South Dakota’s federal criminal cases filed in 2023.
Those criminal cases have been distributed among the district’s two active judges, Lange and U.S. District Judge Karen Schreier, and two judges on senior status, Lawrence Piersol and Charles Kornmann.
Schreier announced in January 2023 that she plans to retire and take senior status upon the confirmation of her successor, which opened the second vacancy.
South Dakota Democrats shut out of process
Biden was tasked with filling judicial vacancies in a heavy Republican state that already has a stable of Democratic-chosen lifetime appointees from former Presidents Bill Clinton and Barack Obama.
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 made 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.
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.
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 of a heart attack.
“When we lost Randy, that was a big blow,” said Shane Merrill of Parker, who now serves as state Democratic Party chair. “He had connections that I don’t have and never will have.”
Merrill told News Watch that he and SDDP executive director Dan Ahlers attempted to engage White House officials on possible nominees, with Ahlers stressing that “we’ve got to have a judge West River who knows the needs of the area and understands the differences in cultures.”
Biden has sought diversity on bench
That outreach from state Democrats, which included a trip to Washington, didn’t result in substantive conversations with Biden’s team about the judicial vacancies or nomination process.
“It really didn’t seem to go anywhere,” said Merrill, who took over as chair after predecessor Jennifer Slaight-Hansen was ousted for violating party rules. “A lot of this is political stuff that’s handled through back-room deals. That’s just the way it is.”
When Viken announced the timetable for his retirement, he told the Rapid City Journal that “a Native person would be an extraordinary candidate for this job.”
That fit with the Biden administration’s priority to nominate women and people of color as Article III judges (Supreme Court, Circuit Court, District Court), preferably those with experience in civil rights.
Nearly two-thirds of the federal judges Biden has appointed so far are women, and the same percentage are members of racial or ethnic minority groups, according to analysis by the Pew Research Center.
‘More about process than politics’
Finding South Dakota candidates who fit those criteria and pass muster with the state’s Republican senators has been difficult.
Fulton, who served on a committee formed by Seiler in 2021 to review applications, said identifying respected and experienced jurists should always be the standard in filling lifetime seats.
“There’s a huge need to identify really capable people who are more about process than politics,” said Fulton, whose experience includes work as a federal public defender. “Anyone who has an investment in the courts in South Dakota would be excited to see the White House and the Senate delegation identity candidates who fit that bill.”
Timing is important, especially in an election year where control of the White House and Senate could potentially change hands. Getting judges confirmed before presidential campaigns accelerate is a good way to prevent negotiations from breaking down, according to Fulton.
“You’d love to see some action for confirmation before Memorial Day,” he said. “The general election cycle seems to be starting a little earlier than normal, and you just don’t know what issues are going to be on people’s plates when that time of year rolls around. I would be great to see action before then.”
Theeler surrounded by legal ties
Schulte is a litigation lawyer with Davenport Evans and former president of the State Bar of South Dakota. The USD law school graduate has practiced at Davenport Evans since 2000, focusing on general civil litigation, insurance defense, and commercial and complex litigation.
Theeler, named South Dakota Young Lawyer of the Year in 2009, is surrounded by legal experience in her family. Her husband, Tyson Theeler, is a USD law school graduate and vice president in trust administration for First Premier Bank. Her father-in-law, Jack Theeler, is a longtime defense attorney in Mitchell who earned his law degree at USD and starred as a basketball player for the Coyotes, earning a spot in the South Dakota Sports Hall of Fame.
One of Cammy Theeler’s most notable cases as a state circuit judge came in 2022 when she sentenced a 21-year-old man who was involved in May 2020 riots near the Empire Mall in Sioux Falls.
In handing down a three-year prison sentence as part of a plea deal for third-degree burglary, Theeler outlined the reckless actions of young people involved, commended the work of detectives in identifying those at fault and called it a “traumatic event for Sioux Falls.”