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.

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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.

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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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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.

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On the 7th Circuit, It's Time for Ron Johnson to Get Out of the Way

Wisconsin Senator Ron Johnson is once again playing politics with the nation's oldest appellate court vacancy. This time, he's changing the rules when they don't work for him, violating an agreement he previously made with fellow senator Tammy Baldwin. His latest efforts to delay filling a five year-old vacancy on the Seventh Circuit are absurd and should simply be ignored by the White House.

Here's the background: Since taking office in 2011, Johnson has been anything but cooperative. He set the tone just five days into his term, when he expressed opposition to nominee Victoria Nourse as well as district court nominee Louis Butler because he had not been consulted in advance on their nominations, both of which had occurred before he was even elected.

He also demanded changes in how Wisconsin's senators identify potential judges to recommend to the White House. For decades, senators had used a Federal Nominating Commission comprised of members selected by the senators. Consistent with practice in other states when one senator is not of the president's party, and regardless of whether the president at the moment happened to be a Democrat or a Republican, a Wisconsin senator of the president's party chose more commission members than the other senator. But Johnson refused to go forward unless he could name as many members as Baldwin, a demand Baldwin agreed to in 2013 in an effort to get the long-stalled process moving after years of inaction.

Under their agreement, each senator would name three commissioners. But to make sure he could keep the Seventh Circuit seat vacant for as long as possible, Johnson ensured that the commission not address that vacancy until it first made recommendations for two district court vacancies. Slowing the process even further, the commission was not allowed to work on the second district court vacancy until the president made a nomination for the first one. This meant that it was not permitted to even start looking for potential Seventh Circuit judges until last summer, 15 months after its formation.

The White House, consistent with its practice of extensive outreach to senators of both parties on judicial nominees, opted to cooperate with this effort. Although presidents generally give home-state senators substantial influence in selecting district court judges, senators usually play a much smaller role in filling circuit court seats. Nevertheless, even with the substantial delay built into the system, President Obama gave Johnson the benefit of the doubt and chose to hold off on a Seventh Circuit nomination until the Wisconsin senators could receive and act on the recommendations of the nominating commission.

But that effort failed. The Commission's charter required it to recommend no fewer than four and no more than six potential nominees to the senators within 75 days of the application deadline. If it couldn't do that, the senators could grant it a one-time 30-day extension. By the end of last year, it was clear that – under the charter that Johnson agreed to – the commission could not make any recommendations.

With the process that the senators asked the president to wait for completely broken down, the White House can make its nomination knowing that they've done all they can do to give the senators input.

Earlier this month, Sen. Baldwin sent the White House the names of the eight people who had advanced as far as the interview stage with the commission. She didn't express support or opposition for any of them. But with the commission process having failed under its own terms, Baldwin acted to make sure the White House could exercise its constitutional prerogative to move forward on the nomination with at least some useful information.

Johnson's response has been interesting. A couple of weeks ago, Johnson said the whole committee process should start again. Then late last week, he released a statement suggesting the White House should consider two of the applicants (those who had the support of five of the six commissioners). He accused Baldwin of a "unilateral breach of a successful agreement," although it is hard to describe an agreement as "successful" when it has undeniably failed under its own charter to make recommendations to the senators. He also claims that "[f]illing vacancies for federal judges in a particular state is the prerogative of the U.S. senators of that state," glossing over the distinction between circuit and district court nominations.

In his statement, Johnson claims he never wanted the commission charter to require a minimum number of circuit court recommendations. So now he is just ignoring the part of his agreement he negotiated that he didn't like. That turns the "give and take" of negotiating an agreement into a "take and take," which summarizes Johnson's actions relating to judicial nominations since he took office.

It isn't just Johnson's own history that provides context for recognizing the motivations behind his current actions. The past few weeks have seen plenty of examples of Republican senators trying to keep circuit court vacancies open for as long as possible rather than let President Obama fill them. Pennsylvania's Pat Toomey blocked committee consideration of Third Circuit nominee Phil Restrepo for half a year, until the local press coverage became too much for him to bear. In Indiana, Republican Senator Dan Coats this month called for the creation of a nominating commission to fill an Indiana slot on the Seventh Circuit. This came as a surprise to Democratic Senator Joe Donnelly, who noted that he's been working on identifying potential nominees for over a year consistent with an agreement he and Coats had reached. Of course, up-ending that agreement and moving to a commission process would create so much delay that it would likely be up to the next president to fill the vacancy, a president that Coats hopes will be a Republican.

But back to Wisconsin, where it is long past time to fill a vacancy that has been open for more than five years. Both President Obama and Senator Baldwin have gone to incredible lengths to accommodate Ron Johnson. Now that the system that he demanded and agreed to has fallen apart, it's time he got out of the way. If he has objections to whoever the president nominates, the proper place to air them will be at a Judiciary Committee hearing.

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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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