Senate Democrats Highlight Importance of Functioning Courts

With John Boehner’s decision to abandon his position as Speaker of the House, chances of a Republican-driven government shutdown beginning October 1 dwindled – and was averted today with only hours to spare.  Unfortunately, Senate Republicans have shown that they don’t need to shut down the government in order to sabotage the effective functioning of the part of the federal government that has a vital constitutional role in ensuring justice for all: the United States judicial system.

Without enough judges, our courts cannot function, and the American people cannot count on vindicating their rights in a court of law.  Either despite or because of the harm it causes ordinary Americans, the Republican-controlled Senate has only confirmed six judges all year.  In contrast, at this same point in 2007 (Bush’s seventh year), the newly-Democratic Senate had already confirmed 29 of his judicial nominees.  With Senate Republicans obstructing the confirmation of judicial nominees at every step of the way, the number of vacancies has skyrocketed from 40 at the beginning of the year to 64 as of October 1, an increase of 60 percent.  Judicial emergencies have jumped from 12 to 31 in the same time.

New York Sen. Chuck Schumer recently took to the Senate floor, highlighting in particular three vacancies in his home state:

The lack of judges has real legal consequences. In the Western District of New York, Judge Skretny--on senior status--has admitted that he is encouraging all cases to settle in pretrial mediation in order to lower caseloads. Criminal trials are prioritized while civil trials languish in delay. The two retired judges, who are the only ones reading cases at the moment, are spending far less time on each individual case than they would under normal circumstances. And defendants may be inclined to settle, admit guilt, and take plea deals rather than wait out a lengthy trial process.

As many of my colleagues have said so eloquently, the harsh truth is that for these petitioners, companies, and communities, justice is being delayed and thus denied. And the same story line is playing out in courtrooms throughout the country. This is not how our judicial system is supposed to work, and it should be an easy problem to rectify.

Yesterday, Dick Durbin of Illinois stood up on the Senate floor and delivered an eloquent statement about the damage caused by obstructing votes on qualified nominees:

[P]eople are asking: When am I going to get my day in court? Well, you will not get your day in court until the new judge gets his day in the Senate. We don’t know when that might happen. There is no reason to delay these confirmation votes. These nominees would be confirmed with overwhelming support. … This is an important responsibility of the Senate. We should not neglect it. …

We could vote on [the many pending executive and judicial nominees] this afternoon. Are we holding off the vote because we are too busy on the Senate floor? If you are following the Senate, you know that is not the case. It is time for us to do our jobs so these nominees can do theirs.

And tying in to the Senate’s recognition of Hispanic Heritage Month, Patrick Leahy of Vermont focused yesterday on several highly qualified Latino nominees being slow-walked by the GOP-controlled Senate:

These dedicated public servants are eager to serve, but they have been blocked by the Republican leadership’s virtual shutdown of the judicial confirmation process since they took over the majority in January. More than 8 months into this new Congress, the Republican leadership has allowed just six votes for judges. At this rate, the Senate this year will confirm the fewest number of judges in more than a half century. Luis Felipe Restrepo, Armando Bonilla, John Michael Vazquez, and Dax Lopez all deserve an up or down vote by this Senate.

Restrepo is President Obama’s nominee to the Third Circuit Court of Appeals and would be the first Latino from Pennsylvania to ever serve on that court.  Senator Leahy cited supportive statements for Restrepo made by Pennsylvania’s Republican senator, Pat Toomey.  Yet Toomey, who has far more influence with GOP leadership than Democratic senators, has been noticeably silent in the face of Majority Leader McConnell’s refusal to schedule a confirmation vote for the nominee.

These Democratic senators clearly understand that courts play a vital role in making our legal rights real and enforceable.  Perhaps Senate Republicans simply don’t understand that.

Or, more ominously, perhaps they do.


What Senator Toomey Left Out of His Re-Election Speech

Sen. Pat Toomey is running for reelection next year in a state that tends to favor Democrats in presidential election years.  So it is no surprise that the former head of the far right Club For Growth opened his campaign by presenting himself as a moderate.  As station WITF reports, Toomey presented the area of judicial nominations as an example of his ability to work across the aisle:

"One of the areas [Democratic Sen. Bob Casey and I] work together regularly on is filling vacancies on the federal bench," Toomey said. "The fact is in the four and a half or so years I've been in the Senate, we have been able to recruit, vet, nominate, confirm 15 men and women across the commonwealth of Pennsylvania."

Many judicial appointments are held up by partisan bickering.

Unfortunately, judges are one of the areas where Toomey has regularly put conservative ideology and the interests of party leaders in Washington, DC, ahead of the interests of the people of Pennsylvania.

The current example involves Phil Restrepo, President Obama’s nominee for the Court of Appeals for the Third Circuit, which covers Pennsylvania, New Jersey, and Delaware.  The Administrative Office of U.S. Courts has formally classified the vacancy Restrepo would fill as a “judicial emergency” because the caseload per judge is so high.  When judges are overburdened, it is hard for the court to provide justice to litigants in a timely, efficient, and fair manner, forcing too many people to learn the hard way that justice delayed is justice denied.

President Obama nominated L. Felipe Restrepo way back in November, and both Toomey and Casey praised the nomination.  That’s important, because the Judiciary Committee generally won’t even give a judicial nominee a hearing until their home-state senators formally signal their approval on a blue slip of paper.  Casey his submitted his blue slip immediately, but Toomey did not, giving cover to committee chairman Chuck Grassley’s efforts to delay the hearing for as long as possible (part of the GOP’s efforts to obstruct a Democratic president’s efforts to staff the nation’s courts with fair, just, and qualified judges in the hopes of leaving as many vacancies as possible for a Republican successor to Obama to fill).  It took a full seven months before Grassley held the hearing, far longer than was necessary.  The senator faced a torrent of criticism at home for his role in the delay, and Toomey’s efforts to explain Restrepo’s delay raised more questions than they answered.

There was enough time after the June hearing to confirm Restrepo before a second vacancy was scheduled to open in July.  Toomey could have prevented the Third Circuit from having two simultaneous vacancies by using his influence with his Republican colleagues to have Restrepo confirmed in time.  However, he chose not to.

When it became clear that Grassley was planning to delay the scheduled committee vote by two weeks for no reason other than delay’s sake, Toomey could have interceded with his fellow Republican.  That is exactly the kind of thing that home-state senators do for nominees they support.  But Toomey chose not to ask Grassley to hold the vote as scheduled.

When the committee finally approved the nomination in July – unanimously, by the way – there was plenty of time to get him confirmed and fill the emergency vacancy before the Senate’s August recess.  But Toomey failed to press his party leader for a timely vote on Restrepo, the Senate left town, and the vacancy remains open today.

Unfortunately, the Restrepo nomination is not the first time Toomey has put ideology and partisan judicial obstruction ahead of Pennsylvanians’ needs.  In late 2013 and early 2014, he voted in lockstep with Washington Republicans to prevent President Obama from filling any of the three vacant judgeships on the critically important D.C. Circuit Court.  Second in importance only to the Supreme Court, the D.C. Circuit is the exclusive court to consider appeals of a wide variety of federal agency regulations and decisions affecting the entire country.  Dominated by ideological conservatives, the court was becoming increasingly notorious for issuing troubling decisions favoring the powerful and limiting the role government can play to address national problems.  Working to keep the D.C. Circuit both short-staffed and dominated by far-right conservatives certainly didn’t help the people of Pennsylvania.  Yet he voted against all three highly qualified nominees: Patricia Millett, Nina Pillard, and Robert Wilkins.

Toomey apparently didn’t mention any of this in his re-election speech, but it is something Pennsylvanians ought to know when they go to the polls next year.


Harry Reid Teaches GOP Basic Math and Civics

Senate Minority Leader Harry Reid stood up on the Senate floor this morning to remind Republicans of one of their basic constitutional duties as senators: to consider the president’s nominees for federal judgeships.

He pointed out the stark contrast with how the Democratic-controlled Senate processed judicial nominations in George W. Bush’s last two years:

So far this Congress, Republicans have confirmed only 5 judges. By this same point in the last Congress of George W. Bush’s presidency, under my leadership, the Senate had confirmed 25 judges. Republicans are being outpaced 5-to-1. And there are real repercussions when Republicans refuse to act. If there aren’t enough judges to hear the cases that are piling up, a vacant judgeship is declared a judicial emergency. At the beginning of the year, there were only 12 judicial emergencies that deserved priority attention.  Yet in the mere 7 months of this Republican-controlled Senate, that number has doubled, and is on its way to tripling. As of today, there are 28 judicial emergencies – including four judges currently pending on the floor.

Of course, as much as Republicans try to obscure it, the fact is that 25 ≠ 5.

Reid also explained how the GOP’s abdication of responsible governing is hurting the American people:

By neglecting to live up to their constitutional duty to provide “advice and consent” for the President’s judicial nominees, the Republican Leader and his party are denying justice for the American people. Federal courts depend on the Senate to do its job so justice can be dispensed in courtrooms across the country. But Republicans clearly have no interest in seeing courtrooms and judicial chambers adequately staffed.

Reid also slammed Arkansas Senator Tom Cotton for blocking a confirmation vote last week for five nominees to the Court of Federal Claims.  These are nominees who were approved unanimously by the Judiciary Committee last year and again this year to a court whose chief judge has urged the Senate to fill its vacancies so the court can handle its caseload.  Nevertheless, Cotton blocked the Senate from voting on the nominees, saying that the judges on the court are willing to carry the caseload themselves without new judges.  (Reid also mentioned yesterday’s report from CQ on how Cotton’s action seems to line up with the financial interests of a law firm he used to work for whose employees gave generously to his campaign.)

Courts matter.  So do the judges who are selected to serve on those courts.  Republicans are weakening our federal court system, even though our most important rights depend on being able to have our day in court front of a fair and unbiased judge.  Senator Reid is right to call on the GOP to do better by the American people.


Toomey Apparently Fails to Press McConnell on Timing for Restrepo Vote

Third Circuit nominee L. Felipe Restrepo was approved unanimously by the Judiciary Committee last week, but Senate Majority Leader McConnell is expected to delay a confirmation vote unless Senator Pat Toomey intervenes on behalf of a nominee he says he supports.  Consistent with how Democrats in the Senate treated George W. Bush’s Third Circuit nominee from Pennsylvania in 2007, when Thomas Hardiman was confirmed just one week after his committee vote, Toomey ought to be pushing McConnell for a vote this month, before the August recess.

Toomey and McConnell are apparently trying to make Pennsylvanians think Toomey is doing that, but they have not actually stated anything of the sort.  Keep in mind that the key item Toomey is being asked to address is timing, with a vote this month.  Pennsylvania newspaper The Legal Intelligencer reports:

Toomey's spokeswoman, E.R. Anderson, said the senator has already approached McConnell.

“Sen. Toomey supports the nomination of Judge Restrepo for the Third Circuit,” Anderson said in an email to The Legal. “As part of his efforts on this issue, the senator has spoken directly with Majority Leader Mitch McConnell to emphasize the importance of getting Judge Restrepo confirmed.”

Don Stewart, a spokesman for McConnell, said that while a date for the vote has not yet been scheduled, “Sen. Toomey has been calling us, so it's on the leader's radar.”

Note that Toomey and McConnell omit any mention of timing.  Did Toomey ask for a prompt confirmation vote?  Did he urge McConnell to let the Senate vote this month?  Did he mention the precedent of confirming Judge Hardiman in 2007 just one week after he was approved by the Judiciary Committee?

Considering that timing is the crux of the issue, it is interesting that Toomey and McConnell’s characterizations of their communication both omit any mention of timing.

So will McConnell allow a vote this month?  If Toomey chooses not to press for a July vote, he’ll certainly be making deliberate delay by McConnell much easier.


With Toomey's Help, Senate Could Confirm Restrepo Quickly

The Senate Judiciary Committee just held a long overdue vote on Third Circuit nominee Phil Restrepo of Pennsylvania.  To no one’s surprise, he has the committee’s unanimous support.  His nomination now moves to the Senate floor, where it is up to Mitch McConnell to schedule a confirmation vote.

So let’s review some of the reasons McConnell should let the Senate vote to confirm him quickly:

  • The vacancy Restrepo would fill has been designated a judicial emergency.
  • There’s a second vacancy on the same court, adding to the strain on the serving judges, as well as the parties before them.
  • Restrepo has the bipartisan support of his home state senators.
  • He has been vetted and approved unanimously by the Judiciary Committee.
  • The vacancy Restrepo would fill has been open for more than two years already.
  • He was nominated eight months ago, way back in November of last year.
  • The Senate needs to make up for lost time, since committee chairman Chuck Grassley refused to even hold a hearing for Restrepo until seven months after the nomination.  (Senator Pat Toomey’s collaboration with Grassley by withholding his “blue slip” made that delay possible.)
  • Restrepo would expand experiential diversity on the Third Circuit, becoming the first judge on that court to have experience as a public defender.
  • He’d be the first Latino from Pennsylvania on the Third Circuit.
  • Everyone on the ABA panel that looked at his qualifications agreed that he was qualified.  In fact, a substantial majority of the panel said he was “well qualified,” which is the highest rating.

Now let’s look at the reasons McConnell might have for refusing to hold a timely confirmation vote:

  • The nominating president is a Democrat.
  • The nominating president is a Democrat.
  • The nominating president is a Democrat.

It’s pretty clear that the reasons for a quick confirmation vote are a lot better than the reasons for delay.  But given McConnell’s appetite for obstruction, it’s equally clear that he is more likely to choose needless delay.

The person best positioned to help Restrepo is McConnell’s fellow Republican, Senator Toomey.  As noted above, despite his public statements praising Restrepo, Toomey collaborated with Grassley when the committee chair was looking for a way to delay the nominee’s hearing.  Appropriately enough, Toomey got slammed in the Pennsylvania press for this until he finally relented.

Then when faced with the knowledge that the committee would needlessly delay its vote by at least two weeks unless he intervened with Grassley, Toomey not only did nothing, he offered an amazingly lame explanation for his refusal to stand up for Restrepo.

It makes you wonder just how much Toomey’s statements of support are worth.

Toomey can do better.  He can talk to McConnell, who has every reason to be responsive to members of his caucus.  And while Toomey’s talking about the needs of Pennsylvanians, he can also remind McConnell how the Democratic-controlled Senate treated George W. Bush’s Third Circuit nominee from Pennsylvania in his last two years.

Like Restrepo, nominee Thomas Hardiman was a district court judge; he had been nominated to the federal bench by Bush earlier in the president’s term.  Like Restrepo, Hardiman was nominated to fill a judicial emergency.  And like Restrepo, Hardiman had the unanimous support of the Judiciary Committee.

And in March of 2007, then-Majority Leader Reid scheduled a confirmation vote just one week after the committee vote.

So is a confirmation vote for Restrepo this month too much to ask?  Perhaps the question is whether it’s too much for Pat Toomey to ask.


On Judicial Confirmations, 4 ≠ 21

Politico is reporting today on how the Senate GOP is blocking President Obama’s judicial nominees:

The GOP-controlled Senate is on track this year to confirm the fewest judges since 1969, a dramatic escalation of the long-running partisan feud over the ideological makeup of federal courts.

The standoff, if it continues through the 2016 elections as expected, could diminish the stamp that President Barack Obama leaves on the judiciary — a less conspicuous but critical part of his legacy. Practically, the makeup of lower-level courts could directly affect a number of Obama’s policies expected to face legal challenges from conservatives.

As we’ve written before, to determine how fairly or unfairly Republican-controlled Senate is treating Obama’s circuit and district court nominees during his last two years in office, the fairest and most accurate comparison is with how the newly-Democratically-controlled Senate treated George W. Bush’s nominees during his last two years:

  • So far this year, the Senate has confirmed only four judicial nominees.  By this same point in 2007, the Senate had confirmed 21 of Bush’s judicial nominees.
  • Since the beginning of the year, circuit and district court vacancies have jumped from just 40 to 59, a nearly 50% increase.  In contrast, in 2007, vacancies dropped from 56 at the beginning of the year to 51 on July 1.  In fact, by the fall of 2008 the Democratic-controlled Senate had confirmed so many of Bush’s nominees that the number of vacancies got as low as 34.
  • Judicial emergencies have skyrocketed from 12 at the beginning of this year to 27 today.  In contrast, in 2007, emergencies dropped from 25 at the start of the year to 18 as of July 1.

When asked about the GOP’s slow-walking of judicial nominees, Republicans went into full avoidance and distraction mode, echoing talking points that Judiciary Committee Chuck Grassley has given before.  Politico reports:

Republicans say statistics show that Obama is receiving comparable treatment to Bush. So far, Obama has gotten 311 judges installed nationwide — compared to 276 for Bush at the same point in his presidency.

The following passage did not appear in Politico, but it would have been great if it had:

Grassley has not publicly turned beet red with embarrassment for taking credit for so many confirmations when, in fact, he and his party opposed even allowing the Senate to vote on an enormous percentage of them.  The GOP forced time-consuming cloture votes on 93 of President Obama’s judicial nominees, even though Republican senators voted to confirm most of them anyway.  The number is high not because of Republicans but in spite of Republicans.  And cloture votes only tell part of the story of the obstruction.  Although Senate Republicans did everything they could to gum up the works and prevent timely confirmation votes for President Obama’s nominees, they seem more than happy to take credit for their eventual confirmation.

Back to the real Politico article:

And while Democrats boast that they had confirmed 21 judges at this point in 2007, Republicans noted that 13 of them had been awaiting floor consideration the previous year. In contrast, Democrats confirmed 27 judges during the lame-duck session late last year before Republicans took over.

And here is how that paragraph might have appeared without the prism of Republican talking points:

By this time in 2007, the Senate had confirmed 13 judges left over from 2006 who were denied a vote during the lame duck not by Democrats, but by Republican Sam Brownback of Kansas.  The Senate had by this point in 2007 also confirmed an additional eight judges who had cleared the Judiciary Committee for the first time that year, a number that by itself is twice the number confirmed by the current Senate.

It is also unclear how mentioning last year’s lame duck confirmations makes the GOP look any better.  If Mitch McConnell was unwilling to schedule more than a mere four confirmation votes during the first half of the year, forcing nominees to wait month after month after committee approval before a vote, then it is hardly realistic to think that adding last year’s lame duck nominees to the mix would have done anything except increase the size of this year’s bottleneck.

The Republican talking points also don’t mention that all but three of the lame duck confirmations had unanimous Republican support.  Even though the nominees had been fully vetted, and even though Republican senators concluded that they were qualified for a lifetime position on the federal bench, they still filibustered most of them before voting to confirm them.  They apparently believed then and believe now that the judgeships these nominees filled should have remained vacant well into this year, even though the Senate was prepared to confirm them last year, and despite the harm that delay would have caused to Americans across the country.

But put all that aside.  At mid-year, here’s the short version:  The GOP-controlled Senate confirmed only four Obama judicial nominees in the first half of this year.  By the same point in 2007, the Democratic-controlled Senate had already confirmed 21 of Bush’s.

No matter how you slice it, 4 ≠ 21.


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.


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.


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.


Cornyn and Cruz Are Devastating Texas Courts

It is no exaggeration to say that the federal court system in Texas is in dire straits. Anyone doubting that need look no further than the state's two senators, John Cornyn and Ted Cruz.

Even with judicial nominees they themselves recommended, Cornyn and Cruz don't lift a finger to help to prevent delays in committee or on the floor. Just ask Jose Rolando Olvera, who was denied a floor vote until nearly three months after his approval by a unanimous Judiciary Committee in February. That's particularly ironic, since at Olvera's hearing, Cornyn had said that he and Cruz would push for his "swift confirmation."

But even worse than this snail's pace post-nomination is the senators' foot-dragging pre-nomination, as they delay making recommendations to fill vacancies in the state's federal courts.

Even if there were no vacancies in Texas, the state would need more judges: The Judicial Conference of the United States has asked Congress to add eight new judgeships in the Lone Star State.

But Texas, in fact, does have judicial vacancies – nine of them, seven of which have been designated as judicial emergencies (meaning the current caseload is too much for the judges to handle). Not one has a nominee, because Cornyn and Cruz have shown little interest in recommending nominees to the White House in anything approaching a timely manner.

They have put together a Federal Judicial Evaluation Committee to vet potential nominees and make recommendations to the senators. But they wait absurdly long after learning about a vacancy before tasking the Evaluation Committee to address it, guaranteeing that the vacancy rate will remain needlessly high.

For instance, in April, the senators announced that the Evaluation Committee was accepting applications for vacancies in the Eastern District (Plano) and the Western District (Midland), both of which are judicial emergencies. This was two months after the Midland vacancy opened, but Cornyn and Cruz's delay was far longer than "just" two months. Midland Judge Robert Junell had actually announced his plans to go into semi-retirement more than a year in advance, in January of 2014. Waiting 15 months after learning of a planned vacancy before even beginning the process to fill it is hardly a sign of deep commitment to the federal courts in Texas.

As for the Eastern District seat in Plano, it had become vacant a month earlier when Judge Richard Schell took senior status. But Judge Schell's plans had been formally announced in March of 2014, a year in advance, and they were known even earlier than that, in January of 2014. Nevertheless, the senators chose to wait more than a year to activate their Evaluation Committee.

That Plano vacancy isn't the only one in the Eastern District. Almost a full year ago, in June of 2014, Judge Leonard Davis announced that he would be taking senior status in May of this year. That left more than enough time for a replacement to be identified by the senators, nominated by the White House, and confirmed by the Senate. After all, that's the reason departing judges tend to make their plans known so long in advance. However, Senators Cornyn and Cruz still have not publicly asked their Evaluation Committee to start work on this vacancy. As a result, the vacancy opened two weeks ago without a nominee. To no one's surprise – but to the detriment of people in Texas – it was immediately designated a judicial emergency.

The April directive to the Evaluations Committee was actually the second one this year. In January, they directed it to start vetting applicants for vacancies in the Southern District (Corpus Christi) and the Northern District (Lubbock). The Lubbock vacancy had just opened, but it had been announced nearly six months in advance. The Corpus Christi seat has been vacant since Judge Janis Jack took senior status in 2011.

And last July, the senators tasked their committee to begin work on vacancies in the Southern District (Galveston) and the Northern District (Dallas). The Dallas vacancy had been announced in April 2013, more than a year before. The Galveston vacancy had opened just a few weeks earlier when Judge Gregg Costa had been elevated to the Fifth Circuit, but he had been nominated with the senators' full support in December of 2013, so this, too, was a vacancy that was known well in advance.

Yet even though these long-delayed Evaluation Committee processes have finally begun, they have still resulted in a total of zero nominees so far.

Then there are the two longstanding judicial emergencies at the Fifth Circuit. Traditionally, home state senators play a much smaller role in filling circuit court seats than they do with district court seats. Nevertheless, the White House has long been consulting extensively with Cornyn and Cruz, who have apparently stated their opposition even to moderate district judges originally recommended for those positions by Republicans.

So it is not a surprise that Texas has nine vacancies without nominees, seven of them judicial emergencies. John Cornyn and Ted Cruz seem to be doing everything they can to maximize the number of vacancies available for (what they hope will be) a Republican president to fill starting in 2017, heedless of the harm this does to their constituents.

Senator Cornyn recently blamed the White House for the vacancies he and Cruz have fostered:

We can't nominate the judges. The president has to nominate the judges.

Given the senators' deliberate and successful sabotage of the federal court system in Texas, the President would be more than justified in going forward with nominations to these vacancies. Then Senators Cornyn and Cruz should press for fair hearings before the Judiciary Committee on which they both serve.