President Joe Biden will have his first vacancy to fill on the federal appeals court based in Denver, as Judge Carlos F. Lucero will retire after more than 25 years on the bench.
A nominee of President Bill Clinton, the U.S. Senate confirmed Lucero in June 1995. Based in Denver, he is the first Hispanic member and the second longest-serving judge currently on the U.S. Court of Appeals for the 10th Circuit, with his confirmation coming one month after Judge Mary Beck Briscoe’s.
A graduate of Adams State College and the George Washington University Law School, Lucero entered private practice in 1966 and was also an adjunct professor at Adams State until his confirmation.
From 1977 to 1978, Lucero was president of the Colorado Bar Association. He ran for the Democratic nomination for the U.S. Senate in 1984 and 1990. In the latter campaign, Lucero lost to Boulder County Commissioner Josie Heath in the primary, with The New York Times describing him as “an underfinanced candidate whose campaign had centered on his attacks against the savings and loan industry.”
“This is exactly what happens in the democratic system when you have the rich and the privileged taking over the American Government,” said Lucero at the time.
The judge was also the author of a 2014 opinion striking down Utah's ban on same-sex marriage. The U.S. Supreme Court declined to review Kitchen v. Herbert and a similar ruling from Oklahoma, legalizing marriage equality in the 10th Circuit several months prior to nationwide legalization.
The 10th Circuit handles cases from Colorado, New Mexico, Utah, Wyoming, Kansas and Oklahoma. There are 12 active judges, the newest of whom, Joel M. Carson III, took his seat in 2018.
During the Trump Administration, confirming conservative judges was a priority of the White House and the Senate. As of this month, 30% of active appeals court judges are Trump nominees. The Huffington Post has reported that some judges have timed their retirements to occur during the new administration, including one judge who announced her intent 90 minutes after Biden's inauguration.
Currently, there are seven judges nominated by Democratic presidents and five who are Republican nominees. Lucero’s retirement will not change that balance. Nationwide, Biden has 53 current and 15 future federal vacancies to fill.
Lucero, 80, will be taking senior status effective Feb. 1. Senior judges, according to the Administrative Office of the U.S. Courts, handle about 15% of the federal judiciary's workload. Even if a senior judge opts to take a full caseload, they still create a vacancy among active judges to be filled.
“A prominent member of our legal community, Judge Lucero has made positive contributions too numerous to count in the state and federal judiciaries,” Colorado Supreme Court Chief Justice Brian D. Boatright said. “While I wish him well in retirement, I am glad to know he will continue to serve as a senior judge on the 10th Circuit and for Colorado.”
There is also one vacancy in the U.S. District Court for Colorado, following the decision of Judge Marcia S. Krieger to take senior status in March 2019. There are now three appointees of Democratic presidents and three Republican-appointed judges on the bench as a result.
"Judge Lucero taught me, and all of his clerks, how to apply the law ethically and compassionately to answer some of the most important legal questions of our time," said Sarah J. Parady, a former clerk of Lucero's and currently a partner at Lowrey Parady Lebsack in Denver. "He made sure that we treated pro se litigants as seriously as wealthy corporations and he taught us that lawyers and judges should write opinions that are readable and that communicate the values of our legal system to the public. His sense of humor is legendary and so is his kind heart."
In August of last year, Lucero took the unusual step of penning an opinion, along with Judge Gregory A. Phillips, criticizing his colleagues on the 10th Circuit for declining to review as a group a case involving qualified immunity for police officers.
“By continuing to await addressing deep and troubling qualified immunity issues brought to our attention time and again, we are complicit in this denial,” Lucero wrote, after a three-member panel of the court granted immunity from liability to a Clear Creek County Sheriff’s deputy who shot and paralyzed an unarmed motorist.
In a discussion with other judges published in the New Mexico Law Review in winter 2001, Lucero touched on the dynamic between appellate judges and the lawyers who appear before them.
"I hear it all the time: 'Look, I came up here; I had fifteen minutes to tell you something, and you guys started asking questions, and you never stopped. You took all my time,'" Lucero explained. "I'll tell you why you shouldn't worry about it. The judges have read your briefs, and they've read what the trial court did. They understand the case, and you should consider questions as totally friendly. Do the best job you can in answering them, but don't worry about anything you didn't have a chance to mention."