Cornyn and Cruz Haven't Helped Their Own Judicial Nominee

The Senate is heading toward a weeklong Memorial Day recess with no sign that Majority Leader McConnell will schedule a vote to confirm a long-waiting judicial nominee from Texas. If Jose Rolando Olvera is not confirmed to the Southern District this week, it will be only the latest failure for Texas Senators John Cornyn and Ted Cruz in looking after their state's federal courts.

The state has ten judicial vacancies, eight of which are judicial emergencies, and only one of which even has a nominee, despite extensive White House efforts to reach out to the senators.

But the focus this week is on Olvera. He was among four district court nominees – three Texans and one Utahan – approved unanimously by the Judiciary Committee way back in February. Three months later, McConnell has allowed the Senate to vote on only two of them, the only judges confirmed so far in the 114th Congress. It is hard to imagine a legitimate reason to delay a vote for so long and deliberately keep a judicial vacancy open longer than necessary.

President Obama nominated Olvera after he was recommended by Cornyn and Cruz, and they praised Olvera and his fellow Texas nominees at their confirmation hearing in January. Yet on February 12, when committee chairman Chuck Grassley delayed a previously scheduled vote by two weeks without offering a reason, not a squeak of protest could be heard from either Cornyn or Cruz, both of whom are members of the Committee.

After they finally cleared the committee, they faced more obstruction, this time from McConnell, who didn't schedule votes on any of these unopposed consensus district court nominees until mid-April. The Utah nominee is finally get a vote later today. But with the Senate planning to leave town until June, Olvera's nomination is still languishing.

In the meantime, people and businesses in Texas suffer from the lack of enough judges. The vacancy Olvera would fill has been formally designated a judicial emergency by the Administrative Office of U.S. Courts, meaning there aren't enough judges to handle the caseload.

In fact, the situation in the Southern District is so bad that the Judicial Conference of the United States (headed by Chief Justice John Roberts) has asked Congress to create two additional judgeships there. In other words, even with every vacancy filled and senior (semi-retired) judges carrying a significant caseload, Texans seeking to protect their legal rights would still be denied their right to a timely day in court.

Surely if the senators had wanted this vacancy filled in a timely manner, it would have been filled already. After all, John Cornyn isn't just some back-bencher. As the Senate Majority Whip, he occupies a powerful leadership position.

The Senate should have confirmed Olvera months ago. There is certainly no excuse for the Senate to leave town for Memorial Day recess without confirming Olvera to the bench and allowing him to take up his judicial responsibilities as soon as possible.

Cornyn and Cruz cannot get a timely confirmation vote in a Senate controlled by their own party for an uncontested district court nominee who they themselves recommended to the White House. Or perhaps they can but choose not to. Either way, that's pitiful.

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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.

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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.

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Grassley Threatening to Shut Down His Minimal Actions on Judges in Mid-2016

According to press reports, Senate Judiciary Chairman Chuck Grassley suggested today at a National Press Club event that the Senate will shut down judicial confirmations in July of next year since it is a presidential election year. CQ reporter John Gramlich tweets:

.@ChuckGrassley on judicial noms: "Come July of 2016, probably they'll be cut off...It's just kind of tradition."

This is awfully rich, coming from the man who has done so much since becoming chairman to ensure that our nation's courts are not adequately staffed. Even though President Obama nominated seven qualified people to the bench back in November, Grassley has allowed only two of them to have hearings. Ranking Democrat Patrick Leahy noted last week that the committee had “not held a hearing on single judicial nomination in more than six weeks and we have several well qualified nominees waiting for a hearing.”

For instance, Eastern Pennsylvania district judge Phil Restrepo was nominated to the Third Circuit back on November 12 with the support of both of his home state senators (Democrat Bob Casey and Republican Pat Toomey), but Grassley has refused to schedule a hearing for him. Other nominees from last November being affirmatively neglected are Dale Drozd (Eastern District of California), LaShann DeArcy Hall and Ann Donnelly (Eastern District of New York), and Travis McDonough (Eastern District of Tennessee).

Once they have their hearings, there are another seven people who were nominated this year who also need consideration, most of whom were nominated back in February.

Even when he allows hearings and schedules a committee vote to advance a circuit or district court nomination to the floor – something that he has allowed only six times this year – Grassley delays the vote without providing a reason.

The backlog that the Iowa senator is deliberately creating is growing.

And now he is talking about shutting down the process next year? You could barely tell he's started the process!

Also, someone ought to remind the Senator what happened during George W. Bush's last year in office. In 2008, the Democratic-controlled Judiciary Committee held hearings for ten of Bush's judicial nominees in September, and all ten were confirmed by the full Senate that same month. In fact, half of those were confirmed just three days after their committee hearing.

Perhaps Chairman Grassley should spend more time processing circuit and district court nominations and less time laying the groundwork for prematurely shutting down the confirmation process altogether.

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Thanks, Mitch: Confirmed Judges to Skyrocket From One to Two

The GOP-controlled Senate's record for slow-walking President Obama's judicial nominees stands in stark contrast to how the Democratic-controlled Senate confirmed George W. Bush's judicial nominees in his final two years. Democrats shepherded 68 of Bush's circuit and district court judges through confirmation in his last two years, including 15 by this point in 2007.

Back in February, the Judiciary Committee unanimously approved four district court nominees from Texas and Utah. But it wasn't until last week that Senate Majority Leader Mitch McConnell finally allowed a vote on one of them, the first and only judicial confirmation vote of the 114th Congress.

Today, McConnell is taking aggressive action by scheduling a Senate vote on ... one of the three remaining district court nominees that have been pending on the floor for nearly two months. Wow, one! Such progress!

The sky's the limit!

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More of the Same, As Grassley Delays More Judicial Nominees

This morning, two judicial nominees were scheduled for a vote before the Senate Judiciary Committee. Unfortunately, Republicans on the committee delayed the votes for Kara Farnandez Stoll (for the Federal Circuit Court of Appeals) and Roseann Ketchmark (for the Western District of Missouri) by at least a week.

Why? Because they could.

Committee rules let senators "hold over" (i.e., delay) committee votes without explanation. This can be a useful mechanism when a nominee is controversial or when senators need more time to evaluate a particular nominee. At its best, the rule can be of use to senators who take seriously their constitutional obligation to staff the federal courts with highly qualified, apolitical judges.

Unfortunately, it can also be of use to Republicans senators seeking to slow down the confirmation process as much as possible in order to maximize the number of vacancies available for a future Republican president to fill with right-wing ideologues.

Since Obama became president, only 12 of his circuit and district court nominees have had their committee votes held on schedule. Republicans have had committee votes held over without cause for all but 12 of his judicial nominees, which is an unprecedented abuse of the rule. That's less than 5% of all the Obama judicial nominees who the Judiciary Committee has voted on.

It was bad enough when Republicans were in the minority and demanding needless delays of President Obama's nominees over the course of six years. But now they are in the majority. They're demanding delays in the schedule that they themselves set up.

So while the number of circuit and district court vacancies has jumped from 40 at the beginning of the year to 50 today, and while judicial emergencies have nearly doubled from 12 to 23 in the same period, Sen. Grassley and his GOP colleagues on the Judiciary Committee are using every opportunity to delay the consideration of judicial nominees.

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95 Senate Roll-Call Votes While Lynch Waits for Hers

Loretta Lynch's nomination has been languishing on the Senate floor since February 26. In that time, Majority Leader Mitch McConnell has found time to hold 95 roll call votes but somehow he just can't fit in a vote on the Lynch nomination. Why? Because he's holding Lynch's nomination hostage on a totally unrelated item that has nothing to do with her qualifications to be Attorney General.

Having been thoroughly vetted, Lynch was approved by a bipartisan majority of the Judiciary Committee seven weeks ago. She could and should have confirmed within a few days, as is customary for Attorney General nominees. Yet that hasn't happened. In fact, she has been waiting for a floor vote longer than the seven most recent attorneys general combined, a landmark she passed even before the Senate's two-week spring recess.

Since Lynch has been waiting for a floor vote, the Senate has taken 95 roll call votes. These have covered five bills, four executive nominations, one judicial nomination, one resolution of disapproval of an NLRB action, and one resolution on the budget. That last one is particularly worthy of note, because several dozen of the roll call votes were on non-binding amendments to a non-binding budget resolution.

McConnell held a veto override vote on the Keystone Pipeline bill, a major priority of some important Republican donors but not connected to the Lynch nomination. He held a roll call vote to repeal the individual mandate of the Affordable Care Act, a major priority of the Tea Party base that had no chance of ever becoming law, and which has no connection to confirming Lynch. And he has held multiple roll call votes to force Democrats to accept abortion restrictions on women who are victims of human trafficking ... which also has nothing to do with Lynch, except that McConnell has chosen that particular item as the ransom to demand in exchange for releasing his hostage.

McConnell needs to drop this ridiculous demand and allow a vote. The position of Attorney General of the United States is simply too important for such nonsense.

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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?

 

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Wisconsin Voter ID Reminds Us of the Importance of Circuit Courts

The Supreme Court this morning denied a request to review the Seventh Circuit's decision to uphold Wisconsin's strict voter ID law. This case shows just how important fair and just courts are to protecting our most important rights, and the consequences of Republican efforts to prevent President Obama from filling circuit court vacancies.

Last spring, a federal district court struck the law down, recognizing that it would have a discriminatory impact on African Americans and Latinos, and that "it is absolutely clear that [it] will prevent more legitimate votes from being cast than fraudulent votes." Of course, that is no surprise, since that is the unstated purpose of these laws. Fortunately, when Wisconsinites recognized that their rights were being violated, a federal judge was able to make sure that partisan efforts to suppress the vote were not able to overcome our laws protecting the right to vote.

Unfortunately, this decision was reversed by a Seventh Circuit panel consisting of conservative judges nominated by Presidents Reagan and George W. Bush. When the entire circuit was asked to review the panel decision, they split 5-5, just one vote short of preventing those rules from going into effect.

One judge could have really made a difference. And it just so happens that Wisconsin Sen. Ron Johnson has blocked efforts to fill a longtime vacancy on that court for more than four years, since the day he took office after the 2010 elections. Make no mistake: Johnson and his fellow Republicans preventing President Obama from putting judges on the bench know full well how important the federal courts are, especially the circuit courts.

In fact, the Seventh Circuit is not the only one with a long-unfilled vacancy. Republican senators from Texas, Kentucky, and Alabama have also been blocking President Obama's efforts to nominate highly qualified jurists to fill longtime vacancies on the Fifth, Sixth, and Eleventh Circuits. As we have written:

[N]o senator should see President Obama's outreach as an opportunity to coerce him into naming an unacceptable far-right nominee. Keeping the judgeship vacant even longer in the hopes that a future (hopefully Republican) president will fill it is not a reasonable option, serving only to make justice less available to those who need it most. At some point, such senators have two choices. They can agree with the White House on someone everyone can support. Alternatively, they should acknowledge the extensive consultations that occurred and present any concerns about the eventual nominee in public before the Judiciary Committee, where the nominee has a chance to respond.

Either way, Republican senators cannot be allowed to indefinitely prevent anyone from being nominated to fill longtime judicial vacancies.

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Why Only Two Judges for Hearings This Week?

Good news: For the first time since January, the Senate Judiciary Committee is allowing a hearing on judicial nominations. The bad news: Although seven nominees have been waiting since last November, Chairman Chuck Grassley is only allowing a hearing for two of them.

That's right … although the number of circuit and district court vacancies has increased from 40 to 51 since the beginning of the year, and even though the number of judicial emergencies has jumped from 12 to 22 in that time, and even though there are numerous nominees who could have a hearing this week, all but two of them will have to keep waiting.

Roseann Ketchmark would serve in the Western District of Missouri, and Kara Farnandez Stoll would serve in the Federal Circuit. For those whose legal rights are protected by those courts, tomorrow's hearing is good news.

But why only two nominees on the agenda? Dale Drozd would fill a judicial emergency in California's Eastern District. LaShann DeArcy Hall and Ann Donnelly would serve in New York's Eastern District. Travis McDonough has been nominated for a seat in Tennessee's Eastern District. And L. Felipe Restrepo would fill a judicial emergency on the Third Circuit, where a second vacancy will be opening up in July.  They all have to wait.

This fast-as-molasses action from the Judiciary Committee stands in stark contrast to how the Democratic Senate processed George W. Bush's nominees in the last two years of his presidency. The Senate confirmed 68 circuit and district court nominees during that time, slashing the number of vacancies from 56 at the start of 2007 to as low as 34 in the fall of 2008.

The current Senate should match that dedication to processing judicial nominations. For that to happen, the Judiciary Committee needs to let nominees have timely hearings.

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