No One is Tying Pat Toomey's Hands Except Himself

According to the Legal Intelligencer, Chuck Grassley’s staff is telegraphing his plans to delay a committee vote for Third Circuit nominee Phil Restrepo of Pennsylvania:

While no official word has been given that a request for a delay has been made by committee members, Beth Levine, spokeswoman for Sen. Chuck Grassley, R-Iowa, the Judiciary Committee chairman, said in an email that it is safe to assume the confirmation vote for Restrepo will be held over.

Even worse, according to their reporting, Grassley's fellow Republican Senator Pat Toomey is not currently planning on doing anything to prevent a two-week delay in a committee vote to fill this emergency vacancy until after the July 4 recess, even though a second vacancy on the same court opens on July 1.

But Toomey spokeswoman E.R. Anderson said Toomey’s hands are tied because he is not a member of the Judiciary Committee.

“Toomey wants Restrepo confirmed,” Anderson said in an email, but he cannot control the scheduling of votes in the committee.

Of course, as Senator Toomey well knows, no one is claiming that he can “control” the scheduling of votes, and no one is asking him to.

What Pennsylvanians are asking him to do is to speak up on Judge Restrepo’s behalf, to ask Chairman Grassley not to delay the committee vote.  You don’t have to be a committee member to speak up on behalf of a nominee you support.  Senators do that all the time.

Well, maybe not all senators.  Just the ones who put the interests of their constituents and of nominees they support ahead of partisan politics.

PFAW

If Judiciary Committee Delays Restrepo Vote, Blame Pat Toomey

The Judiciary Committee has announced that it will hold an executive meeting this Thursday morning, and a vote on Third Circuit nominee L. Felipe Restrepo is on the agenda.

But with very, very few exceptions, President Obama’s judicial nominees have learned that being scheduled for a committee vote is not a guarantee that the vote will happen.  In fact, once Obama became president, Republicans exercised the right of the minority party to have a committee vote “held over” (delayed) by at least a week without cause in all but 12 instances for President Obama’s judicial nominees, which is an unprecedented abuse of the rules.  They have continued this practice as the majority party.

Yet there have been exceptions.  For instance, the nominee to replace Arizona’s murdered Judge Roll did not have her committee vote needlessly held over.  Nor did six Arizona nominees up for a vote on the same day last year at a time when that state was facing a judicial emergency.  In those cases, the state’s senators were willing to ask their fellow Republicans not to hold up vitally important committee votes.  Politics and partisanship took a back seat on those days.

There surely isn’t any doubt about the need to fill the Third Circuit vacancy as soon as possible.  It has been formally designated a judicial emergency by the Administrative Office of U.S. Courts, meaning there just aren’t enough judges to handle the caseload.

Plus there’s a ticking clock: On July 1, Judge Marjorie Rendell will be taking senior status, thus creating yet another vacancy on a court that isn’t effectively handling the first one.  As for Restrepo himself, he has the strong support of his home state senators, Democrat Bob Casey and Republican Pat Toomey.

With the Senate out next week for its Independence Day recess, holding the vote over will delay it by at least two weeks, to July 9.  Why should Judge Restrepo’s committee vote be delayed for two weeks?

This is an opportunity for Pat Toomey to show leadership.  He can – and should – push for a committee vote this week.  If he has any influence among his colleagues, they will listen to him.

Pat Toomey says he supports this nomination.  His words have been wonderful.  But now is the time for deeds, not words.

PFAW

Toomey Can Protect the 3rd Circuit from Having Two Simultaneous Vacancies

Tomorrow’s hearing for Judge L. Felipe Restrepo’s Third Circuit nomination is occurring shortly before another vacancy opens on that same court, yet precedent shows that he can be confirmed in time to protect that court from having two vacancies at the same time.

When President Obama nominated Restrepo way back in November, it seemed unlikely that he would have to wait seven months just for his committee hearing. Unfortunately, Republican control of the Senate has caused the confirmation process to move slowly for all judicial nominations.

As a result, when the hearing occurs this Wednesday, it will be a mere three weeks before another vacancy opens on the same court on July 1. Considering that the vacancy that Judge Restrepo would fill has been formally designated as a judicial emergency, senators should be bending over backwards to confirm him before the next vacancy opens.

Fortunately, precedent shows that this can be done. Restrepo is helped by the fact that he is a known quantity – the Senate unanimously confirmed him to his current position just two years ago – and he has the bipartisan support of his home state senators.

Such an efficient process going forward would hardly be unprecedented. While no Obama circuit nominee has advanced from committee hearing to confirmation within three weeks, nine of George W. Bush’s circuit court nominees did. Notably, half of these nominations from the most recent GOP president were considered by a Senate controlled by Democrats.

  1. Roger Gregory, Fourth Circuit: 9 days (2001)
  2. William Riley, Eighth Circuit: 9 days (2001)
  3. Michael Melloy, Eighth Circuit: 18 days (2002)
  4. Jeffrey Howard, First Circuit: 12 days (2002)
  5. Consuelo Callahan, Ninth Circuit: 15 days (2003)
  6. Richard Wesley, Second Circuit: 20 days (2003)
  7. Michael Chagares, Third Circuit: 21 days (2006)
  8. Milan Smith, Ninth Circuit: 21 days (2006)
  9. G. Steven Agee, Fourth Circuit: 19 days (2008)

(The first one, Roger Gregory, was a unique case, since he had originally been a 2000 Bill Clinton nominee and recess appointee who was renominated by Bush.)

Fast forward to today: The clock is ticking toward July 1.

Just as Democrats and Republicans alike worked to confirm a number of President Bush’s circuit court nominees within three weeks of their committee hearings, Senators Bob Casey and Pat Toomey can work together to make this happen again. They both expressed strong support for Restrepo when he was nominated last year, and they can both see the harm to their constituents if the court has a second vacancy added to the already-existing judicial emergency.

Toomey has gotten a lot of bad in-state press criticizing him for his role in delaying Restrepo’s hearing for more than half a year. That delay is the reason there are only three weeks left before the next vacancy opens.

But with the Senate under Republican control, Toomey now has an opportunity to showcase his ability to influence Judiciary Committee Chairman Chuck Grassley and Majority Leader Mitch McConnell and protect Pennsylvanians’ access to justice. A public statement by Toomey at the hearing on the pressing need for the Senate to act quickly to prevent a second vacancy on the court would send an important signal to his constituents, as well as to his Senate colleagues.

Ten of George W. Bush’s circuit court judges were confirmed by the Democratic-controlled Senate in his last two years in office, three of them by this same point in 2007. The count for the current Senate is zero. But with Toomey’s help, there could be a Third Circuit confirmation before Independence Day.

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Reuters Report: Voters Won't Let Billionaires Buy the Next Election

 With the 2016 national elections upcoming, wealthy donors supporting both parties are gearing up to throw hundreds of millions of dollars into the races; billionaires David and Charles Koch have already pledged to spend $889 million. But a report from Reuters shows that Americans, frustrated by the overwhelming influence of big money in politics, are organizing to fight back.

 In the Philadelphia mayoral race, three billionaires spent $7 million to elect Anthony Hardy Williams. In response, unions and community groups rallied around his challenger, Jim Kenney, organizing a march to stop the wealthy donors from “buying [their] next mayor.” Technological developments are making such organization easier: the creators of Crowdpac, an app that lets entrepreneurs gather funding towards donations, say that they want the app to be used to organize small donors to counteract the effects of billionaire spending.

  This is reflective of a wider trend in public opinion. Americans are sick of letting big money influence their elections; 84 percent say that money has too much influence in political campaigns today and nearly 3 in 4 Americans support a constitutional amendment to overturn the Citizens United decision and limit campaign spending.

“There's growing public awareness about rich people trying to buy elections and that makes the task of winning all the more difficult," said Darrel West of the Brookings Institute.

  Americans have organized at all levels of government to get big money out of politics. Activists have held rallies and marches devoted to the cause and demanded that their representatives in Congress take steps to reduce big money’s influence. Five million of them have signed a petition calling for a constitutional amendment to limit the amount of money spent in politics. Sixteen states and more than 650 cities have already called for an amendment.

 President Obama is on board, and presidential candidates like Hillary Clinton, Lindsey Graham, and Bernie Sanders have expressed support for a constitutional amendment. Clinton and Sanders have also emphasized the importance of nominating Supreme Court Justices who would restore balance to the Supreme Court and restore the American people’s ability to impose reasonable limits on money in politics.

  The movement against big money in politics is gaining momentum as the election nears.

 

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Harry Reid Calls Out Pat Toomey on GOP Blocking of Restrepo

Earlier today, Senate Minority Leader Harry Reid condemned Senate Republicans for obstructing Third Circuit nominee L. Felipe Restrepo.  Although home state Senator Pat Toomey of Pennsylvania publicly expressed support for him half a year ago when he was first nominated, he has blocked the Judiciary Committee from holding a hearing.  Whether he is doing this on his own or at the request of committee chairman Chuck Grassley is a mystery, since Toomey has refused to state why he is blocking a nominee he supports.

As Senator Reid said today:

This afternoon, the Judiciary Committee will hold a hearing on several delayed judicial nominations. Felipe Restrepo, a Court of Appeals nominee to the Third Circuit will not be on the agenda, despite being nominated by the President six months ago. He will not be on the agenda, despite the fact that this Philadelphia-based seat is a judicial emergency. He will not be on the agenda, despite the public support of the junior Senator from Pennsylvania who said Judge Restrepo would be "a superb addition to the Third Circuit." Why doesn't he come here – the junior Senator from Pennsylvania – to talk about this man being held up by his own party? There is no reason that he's held up for six months other than the Republicans just simply want to do everything they can to create problems for President Obama. Pennsylvanians are left wondering why this qualified judicial candidate is not moving forward.

It isn't like Pennsylvanians haven't asked. In fact, some traveled to Washington earlier this week to visit Casey and Toomey's DC offices personally, but Toomey's office reportedly refused to meet with them.

This is part of the Republicans' overall scheme to prevent President Obama from fulfilling his constitutional responsibility to put qualified jurists on the nation's federal bench. But the Third Circuit vacancy is a judicial emergency, and a second vacancy on that court will be opening up in July. Pennsylvanians need Restrepo fully vetted and confirmed by then, but Washington Republicans want to keep the court hobbled for as long as they can.

Senator Toomey seems all too willing to sacrifice Pennsylvanians' interests to his party's political goals.

PFAW

Long Past Time to Let 3rd Circuit Nominee Restrepo Have His Hearing

Senate Judiciary Committee Chairman Chuck Grassley yesterday announced there will be a judicial nominations hearing next Wednesday, the first one since March 11. He let eight weeks go by without allowing any of President Obama's judicial nominees to testify to the committee. It isn't like there haven't been plenty of nominees who have long been ready for this. Most of those nominated as far back as last November have yet to make it even that far.

As we have written before, Eastern Pennsylvania federal judge L. Felipe Restrepo is among those nominees being obstructed. Confirmed to his current position by the Senate by unanimous voice vote in June of 2013, he earned strong statements of support from home state senators Bob Casey (a Democrat) and Pat Toomey (a Republican) when he was nominated for elevation to the Third Circuit last November.

But since then ... nothing. Chairman Grassley has conspicuously refused to schedule a hearing for him. Although Third Circuit Judge Marjorie Rendell announced in late January that she plans to take senior status this summer, thus opening a second vacancy on the court if Restrepo is not confirmed by then, Grassley did not schedule a hearing. And when the Administrative Office of U.S. Courts formally classified the vacancy Restrepo would fill as a judicial emergency in February, Grassley's response was ... nothing.

Pennsylvanians who care about their state's federal courts have been asking where their senators have been all this time, especially Toomey. As a fellow Republican, Toomey surely has Grassley's ear on matters of importance to folks in the Keystone State.

The fact that this nomination has gone for nearly half a year without a hearing says volumes about both Grassley and Toomey. As for saying things about Restrepo, he can best speak for himself, and surely would be pleased to do so, if only Grassley would let him.

PFAW

Where is Pat Toomey on Phil Restrepo's Nomination?

Sunday was the five-month anniversary of when President Obama nominated Pennsylvanian Phil Restrepo to the Third Circuit Court of Appeals. Yet Judiciary Committee chairman Chuck Grassley has still refused to schedule a hearing for him.

It's not like the committee has been hearing too many other circuit and district court nominees to make room for Restrepo. In fact, Grassley has had only two hearings for such nominees so far this year. At the second one, he only scheduled it for two nominees, although several other long-waiting nominees could easily have been accommodated.

And it's not like there is no need to fill the vacancy. In fact, on January 27, Third Circuit Judge Marjorie Rendell announced her intention to take senior status on July 1, making it important to get Restrepo confirmed by then so the court would not needlessly have a second vacancy. Nevertheless, Grassley did nothing.

A few weeks later, on February 20, the Administrative Office of U.S. Courts officially re-designated the vacancy that Restrepo would fill as a judicial emergency. Grassley's response was to do nothing. It was three weeks later that he held a hearing for two other judicial nominees and chose to exclude Restrepo.

Way back in November, Restrepo's nomination prompted statements of support from both of his home state senators, Democrat Bob Casey and Republican Pat Toomey. Unfortunately, it has been clear for awhile now that Grassley needs additional prodding, and given GOP control of the Senate, Toomey has a particular responsibility to make sure this nominee receives the attention he deserves. Other than release a statement five months ago, has Toomey spoken with Grassley? If not, why not? And if so, why has he been so ineffectual over these past five months?

 

PFAW

More Delay on the Restrepo Nomination

Qualified jurists nominated for federal judgeships way back in November are still waiting to have a committee hearing scheduled. They include Kara Farnandez Stoll, who would be the first woman of color on the Federal Circuit, and L. Felipe Restrepo of Pennsylvania, who would be the first judge on the Third Circuit with experience as a public defender. The Third Circuit vacancy has been designated a judicial emergency, and with another vacancy on that court opening on July 1, it is even more important not to keep delaying Restrepo's already overdue hearing.

Yet a Grassley spokeswoman told The Legal Intelligencer (subscription required) that she "couldn't even estimate" a timeframe for Restrepo's hearing. Apparently, that's because the committee is also working on other nominations. She said that processing the Loretta Lynch attorney general nomination had required "all hands on deck," and that the committee was also preparing for the deputy attorney general nomination of Sally Yates.

Surely the committee is capable of handling both executive and judicial nominations.

A comparison to the Bush era is instructive, when the Democratic Judiciary Committee considered Michael Mukasey's nomination to be attorney general. The committee received Mukasey's nomination on September 21, 2007, held hearings, and advanced him to the full Senate on November 6. During that time, the committee was able to hold confirmation hearings on six judicial nominees and advance two to the full Senate. It was also able to advance an additional four judicial nominees the week after voting on Mukasey.

Fast-forward to now, a week after Lynch was advanced to the full Senate. The Judiciary Committee hasn't held a hearing for circuit or district court nominees since January 21, a week before the Lynch hearing. In the meantime, the number of current vacancies has climbed from 40 at the beginning of the year to 47 today, and the number of judicial emergencies has jumped from 12 to 21.

Hearings for Judge Restrepo and other judicial nominees are long overdue.

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Republican Inaction as Judicial Emergencies Jump

Yesterday we blogged about how the Senate Judiciary Committee and Chairman Chuck Grassley ought to move judicial nominations next week when they return from recess. We noted that the number of vacancies has increased from 39 at the end of last year's lame duck session to 46 today, with fourteen of those officially designated as judicial emergencies.

Well, we've had developments since yesterday's post. First, next week's committee schedule is up, and no hearings have been announced for judicial nominees.

And secondly, the Administrative Office of U.S. Courts this morning designated an additional five vacancies as judicial emergencies, so the total has jumped from 14 to 19.

These new emergencies include one in the Northern District of Texas, which has been vacant since July of 2013 and which had been announced in advance in April of that year. Yet it was not until last July that Sens. Cornyn and Cruz announced a process to identify Northern District recommendations to the White House. Perhaps if they had not waited more than a year after being notified of this vacancy, it would be filled today. Instead, there is no nominee yet, and a vacancy that should not still exist is instead a judicial emergency.

Texas now has seven judicial emergencies, more than a third of the national total. Two of them have nominees who should have advanced to the Senate floor last week, but were delayed when Republicans decided to delay the scheduled committee vote on four fully vetted district court nominees by two weeks simply because they could.

Another of the newly designated emergencies is in the Third Circuit. The good news is that district court judge L. Felipe Restrepo was nominated to fill this seat way back in November, and that he has the enthusiastic support of his home state senators, Democrat Bob Casey and Republican Pat Toomey. The bad news is that Chairman Grassley continues not to schedule a hearing for this highly qualified nominee (or any other). With this vacancy now a judicial emergency and a second vacancy on the circuit opening in July, the decision to slow-walk this nomination is even more harmful.

So as of today, the number of judicial emergencies has jumped from 12 at the beginning of the year to 19 today. Senate Republicans can and should do much more to get that number moving back down.

PFAW

Lame Duck Opportunity and Obligation: Confirm Judges

Cross-posted from The Huffington Post.

During the upcoming lame duck session, the Senate has an opportunity to finish up a critically important task where they can act quickly by unanimous consent or voice votes: Confirming two dozen judicial nominees.

The GOP's behavior during their last few weeks as the minority party will be very telling. Before taking over the chamber next year, will they allow the Senate to do its job and confirm nominees? Or will Republicans continue their pattern of obstructing or delaying action on highly qualified nominees – even ones recommended to the White House by GOP senators – just because Democrats support them? This may give Americans some insight on whether Senate Republicans plan to use their newfound majority next year in a constructive manner, or whether they will continue to put destructive partisanship above the nation's welfare.

In September, senators left town without voting on any of the 16 district court nominees who had already been fully vetted by the Judiciary Committee and advanced to the Senate floor. Another eight district court nominees had their hearings in September and will be ready for committee approval the week the Senate returns, so the full Senate will be able to hold votes for them, as well. That's at least 24 district court vacancies that could be filled during the lame duck.

Eight of these would fill vacancies in three states – Texas, Georgia, and Kentucky – where the need is so great that the Administrative Office of U.S. Courts has formally designated them as "judicial emergencies." All three of these states are represented by Republican senators, including the future Majority Leader.

In the Northern District of Georgia, the workload has gotten so high that even if the nominees were confirmed tomorrow, it would not be enough to ensure Americans their day in court. That is why the nonpartisan Judicial Conference of the United States has urged Congress to create two new judgeships there.

The situation is even more dire in Texas, where the Senate has a chance to fill three vacancies in the Eastern and Western Districts. The Western District judgeship has been vacant since 2008, and the Judicial Conference has asked for five new judgeships there to carry the load on top of filling all the existing vacancies. Chief Judge Fred Biery discussed the need for new judges last year, saying, "It would be nice to get some help. We are pedaling as fast as we can on an increasingly rickety bicycle." Judge David Ezra, formerly of Hawaii, explained why he was moving to Texas to hear cases in the Western District: "This is corollary to having a big wild fire in the Southwest Border states, and fire fighters from Hawaii going there to help put out the fire."

The Eastern District of Texas is in similar need of getting its vacancies filled during the lame duck: Of the nation's 94 federal districts, only two have had more weighted filings per judgeship than the Eastern District, according to the Administrative Office of U.S. Courts' most recent statistics. Small wonder, then, that the Judicial Conference has asked for two new judgeships there: Even if every judgeship were filled, that just isn't enough. To make matters worse, two more judges in the Eastern District have announced their intention to retire or take senior status next year, making it all the more important to fill the current vacancies now.

(Senators also have another opportunity to help the people of Texas: Three nominees for the Southern District will likely have their committee hearings this month. Nominated by President Obama upon the recommendation of Sens. Cornyn and Cruz, these nominees can get a timely committee vote if the GOP cooperates, making them eligible to join the others on the Senate floor. Two of these vacancies are judicial emergencies, but even if they are filled, the Judicial Conference recommended that Congress create an additional two new judgeships to bring the Southern District up to an acceptable level of efficiency.)

There is no reason not to allow the Senate to vote on the judicial nominations before it. In fact, a number of Republican senators are on record supporting specific nominees from their state who they had recommended to the White House. For instance, back in June, Wisconsin's Ron Johnson urged "swift confirmation" for nominee Pam Pepper. Last spring, Pennsylvania's Pat Toomey said he would work to make sure that four nominees from the Eastern District would be confirmed "as soon as possible." During the summer, Illinois' Mark Kirk said he would "urge the full Senate to swiftly approve" John Blakey, who is expected to be approved by the Judiciary Committee later this month.

In past years, when the Senate was a more functional body, confirmation votes for district court nominees were regularly held by unanimous consent or voice vote, taking a few seconds or minutes at most. That includes during lame duck sessions.

For instance, after the 2002 midterms, even though Senate Democrats had lost control of the chamber in the elections, they worked closely with Republicans during the lame duck session to make sure that 20 of President George W. Bush's judicial nominees got confirmed. These included a highly controversial circuit court nominee who was confirmed by a 55-44 roll call vote. The other 19 were confirmed by voice vote, 18 of them on the same day. In 2014, as in 2002, the Senate can voice-vote all the consensus nominees and hold roll-call votes on the handful who may have some opposition.

If the majority is allowed to hold confirmation votes on the nominees who have been fully vetted and approved by the Judiciary Committee, this will finally let the president reduce the number of vacancies in America's court system to what it was when Bush left office. Republicans should cooperate in this endeavor rather than try to frustrate it. After all, this is basic governance, and something the Senate can do easily and quickly.

Will this happen without a fight? While we don't know for sure, recent GOP actions are not encouraging. For nearly a year, Republicans have filibustered every single judicial nomination without exception, even when they support the nominee. Obstruction continues even after the cloture vote. Absent unanimous consent to do otherwise, Senate rules require a period of "post-cloture debate" after a filibuster is broken: 30 hours for circuit and two hours for district court nominees. Since the rules also let the Democrats cede their half of the two-hour period for district court nominees, those post-cloture periods can be shortened. In recent months, Democrats and Republicans have often agreed to hold confirmation votes the day after the cloture votes without actually requiring that floor time be devoted to post-cloture debate on the nominee. This is what passes for GOP "cooperation" these days: A roll-call cloture vote with near-uniform Republican opposition, a delay of at least a day, and then a time-consuming roll-call confirmation vote for a nominee who usually has overwhelming if not unanimous bipartisan support.

The Constitution assigns to the Senate the job of deciding whether to confirm the president's judicial nominees. When the Senate is prevented from acting on this basic task in a timely manner, the entire third branch of the United States government atrophies. Americans are justly proud of our judicial system, which we count on to guarantee fairness and justice for all. It is not a controversial or partisan position to state that our courts should be staffed. And it should not be a controversial or partisan position to say that the Senate should be allowed to vote by year's end on whether to confirm the two dozen judicial nominees whose time would be better spent hearing cases rather than waiting out partisan senators.

PFAW