Today is the one-year anniversary of the nomination of L. Felipe Restrepo to the Third Circuit Court of Appeals. That Restrepo hasn’t yet been confirmed says volumes about Senate Republicans, and especially Pat Toomey.
When Restrepo was nominated, both of his home state senators – Democrat Bob Casey and Republican Pat Toomey – released enthusiastic statements of support. Unfortunately, only one of them matched his words with deeds. Casey submitted his “blue slip,” signaling his approval for the Judiciary Committee to take up the nomination. Toomey didn’t. That’s critically important, because under current practice, the chairman won’t schedule a hearing let alone hold a committee vote without blue slips from both home state senators. So as Toomey sat on his hands, month after month went by with no hearing for Restrepo. As winter turned to spring, people were wondering where Toomey was on Restrepo’s nomination.
In early May, as the Huffington Post’s Jen Bendery reported, Chairman Chuck Grassley said he’d hold a hearing once Toomey got his blue slip in. When Pennsylvania constituents with the National Council of Jewish Women tried to meet with Toomey’s office to ask why he was blocking Restrepo, they were turned away.
Within a few days came a slew of bad in-state press for the senator, including articles in the Philadelphia Inquirer ("A judicial nominee waits; Toomey gets blamed"), the (Allentown) Morning Call ("What's Holding Up a Pa Appeals Court Nominee?"), the Pittsburgh Post-Gazette ("Confirmation Vote on Pennsylvania Jurist Awaits 'Blue Slip' from Toomey"), and the Legal Intelligencer ("Political Maneuvers Holding Up Nominee for Third Circuit"). Toomey's obstruction of the man who would be only the second Latino judge ever on the Third Circuit (and the first from Pennsylvania) has also prompted coverage in the Latin Post ("Democrats, National Groups Urge GOP Senators to Expedite Nomination Process of Judge Luis Felipe Restrepo After Delays"), criticism from leading civil rights figure and PFAW Board member Dolores Huerta ("Toomey and Republicans: Do Your Job, Confirm Restrepo"), and a request from the Hispanic National Bar Association that Toomey urge the Judiciary Committee to swiftly consider the nomination.
Toomey finally broke his silence and blamed Grassley, saying that he was waiting for the committee’s background investigation to be completed, an explanation that didn’t pass the laugh test. After all, Restrepo already had a thorough background investigation for his confirmation to the district court in 2013, so why would it take so long to complete one to cover only the short interval since then? And why didn’t Toomey mention this when he had been asked about it earlier? Nor had Grassley said anything about this initially. After this embarrassment, the two Republican senators coordinated their stories more effectively (as has been the case with Grassley and the other GOP Senators who, unlike their Democratic counterparts, withhold their blue slips for months).
Finally, Toomey submitted his blue slip on May 14, half a year after the nomination. By this time, the vacancy had been formally designated a judicial emergency, and it became known that a second vacancy would be opening on the court during the summer. Fortunately, there was time for Chairman Grassley to schedule a hearing for Restrepo before the Memorial Day break. And perhaps he would have done so, if Toomey had made any effort to make it happen. In fact, with Toomey’s acquiescence, the hearing was delayed until June 10, nearly a full month after Toomey had submitted his blue slip.
But that didn’t end the delays. The next step in the confirmation process is the committee vote. Grassley put a Restrepo vote on the agenda for late June, which was great. However, Grassley has routinely exercised the right to hold over a vote on a nominee without cause, and his staff signaled he would do this to Restrepo (again, with no explanation as to why). This gave Toomey plenty of time to do what his constituents were asking him to do: step up and ask Grassley not to needlessly delay advancing Restrepo to the full Senate. Unfortunately, when asked if Toomey would talk to Grassley, Toomey’s office ducked the question, saying that the Pennsylvania senator isn’t a member of the committee and does not control the scheduling of votes. Of course, senators routinely speak to their colleagues to help advance home-state nominees who they support. No one was tying Toomey’s hands but himself.
Finally, on July 9, eight months after being nominated, Restrepo was approved by the committee by unanimous voice vote. At that point, it was up to Toomey’s fellow Republican, Majority Leader McConnell, when to hold a confirmation vote. With Toomey’s help, the Senate could have confirmed Restrepo quickly, and certaily before the summer recess would begin a month later. It soon became clear, however, that Toomey was not pressing McConnell on timing on a vote, and the senators left town until September.
And now here we are, in mid-November, and Restrepo remains unconfirmed, the result of Toomey’s collaboration with his party leaders to obstruct judicial nominations as much as possible. For individuals and businesses in Pennsylvania (as well as New Jersey and Delaware, the other two states within the Third Circuit), having two vacancies unfilled means not having timely access to justice. This judicial emergency could have and should have been filled many months ago.
Restrepo was nominated one year ago today. It is an anniversary that Pat Toomey should be ashamed of.