Will Nebraska's Senators Help Our Federal Courts?

Nebraska has a judicial vacancy that has been open for more than a year, leaving fewer judges available to handle the state’s relatively heavy caseload.  Fortunately, there is a fully vetted nominee with strong bipartisan support who could fill that slot today.  Unfortunately, Robert Rossiter is stuck in the middle of a bottleneck deliberately engineered by Senate Republicans.  The question is whether Senators Deb Fischer and Ben Sasse, both Republicans, will exercise their influence with party leadership to clear up that bottleneck for the benefit of their fellow Nebraskans and the rest of the country.

At Rossiter’s confirmation hearing, Sen. Fischer spoke about urgency of filling the vacancy as soon as possible:

[Nebraska has] the most per-judgeship weighted filings among the eight states that have only three authorized judgeships and a single federal district.  With a small bench and a full docket, it is important that this federal district court is operating at full capacity.  Despite this fact, however, the judgeship that Bob has been nominated for has been vacant for more than a year.  [T]his court must be provided with the necessary resources to work efficiently[.] … I urge my colleagues to support Bob Rossiter’s nomination quickly so that he can put his outstanding intellect, skill, and judgement to work for the American people.

However, Majority Leader Mitch McConnell has needlessly forced all of President Obama’s nominees to wait for floor votes far longer than necessary, creating a bottleneck that delays everyone.  He has allowed only ten judicial confirmation votes so far this year, an absurdly small number that has caused judicial vacancies and judicial emergencies to skyrocket since Republicans took over the Senate.

When McConnell finally schedules a vote on a circuit or district court nominee, it has been in the order that they came out of the Judiciary Committee (and, when nominees advance on the same day, the order that they are listed on the Senate Executive Calendar).  Rossiter has many nominees ahead of him in the list of circuit and district court nominees currently waiting for a floor vote:

  1. L. Felipe Restrepo (PA, Third Circuit) – July 9
  2. Travis McDonough (TN) – July 9
  3. Waverly Crenshaw (TN) – July 9
  4. Wilhelmina “Mimi” Wright (MN) – September 17
  5. John Vazquez (NJ) – September 17
  6. Paula Xinis (MD) – September 17
  7. Brian Martinotti (NJ) – October 29
  8. Robert Rossiter (NE) – October 29
  9. Edward Stanton (TN) – October 29
  10. Rebecca Goodgame Ebinger (IA) – November 5
  11. Leonard Strand (IA) – November 5
  12. Julien Neals (NJ) – November 5
  13. Gary Brown (NY) – November 5
  14. Mark Young (CA) – November 5

So if Sens. Fischer and Sasse want to get help to the overburdened Nebraska federal court as soon as possible, they need to do more than just press McConnell to schedule a confirmation vote for Rossiter.  If they want to help their constituents in Nebraska, they need to press McConnell to immediately allow votes on all those judicial nominees ahead of Rossiter.  Like all 14 pending nominees, they have been fully vetted and face no opposition.  In fact, all 14 could and should be confirmed immediately.

There is no good reason that Fischer and Sasse can’t make sure Rossiter is confirmed by the time they go home for Thanksgiving.


On Judges, GOP Senate Finally Breaks Into Double Digits

The Senate is scheduled to vote to confirm New York district court nominee LaShann DeArcy Hall late this afternoon.  She will only be the tenth judge confirmed this year, even though it’s already the week before Thanksgiving.

What explains this ridiculously low number?

It isn’t because this is the first year of a new administration, so that nominations weren’t made until several months into the year.  In fact, when the Senate convened this year, the Judiciary Committee immediately had eleven circuit and district court nominees from last year to consider, one of them being DeArcy Hall.  She isn’t the only 2014 nominee who still hasn’t been confirmed: Third Circuit nominee L. Felipe Restrepo is still waiting for a confirmation vote.

The low number of judicial confirmations also isn’t because the nominees are controversial.  Almost all of them faced no opposition whatsoever in the Judiciary Committee or on the Senate floor.  But that didn’t stop Republicans from slow-walking them at every step of the way.

Take Restrepo, for instance: He has the support of both his home state senators, one a Democrat and the other a Republican.  He had been unanimously confirmed to a district court judgeship in 2013, so the Senate had already done a thorough and recent vetting of his background.  Yet Senator Pat Toomey and Chairman Chuck Grassley collaborated to delay Restrepo’s committee hearing until seven months after his nomination.  He impressed the members of the Judiciary Committee and demonstrated to each one of them that he was highly qualified to serve on the Third Circuit, yet Grassley delayed a committee vote for two weeks without an explanation.  And for the more than four months since then, day after day after day, GOP leadership has refused to schedule a confirmation vote to let an unquestionably qualified jurist fill a vacancy that has been formally designated a judicial emergency.  Now more than a year has gone by since his nomination.

The low number of judicial confirmations also can’t be explained by a lack of need for judges.  Restrepo is hardly the only slow-walked nominee this year who would fill a judicial emergency.  In fact, the number of judicial emergencies nationwide has skyrocketed from 12 at the beginning of the year to 29 today (after DeArcy Hall is confirmed).  Similarly, the number of circuit and district court vacancies has risen dramatically, from 40 at the beginning of the year to 62 after today’s confirmation.

Even if every vacancy were to be filled tomorrow, there would still not be enough judges to ensure every American’s opportunity to have their day in court.  Judges are so overwhelmed that the Judicial Conference of the United States recommended in March of 2015 that Congress create five new circuit court seats and 68 new district court seats (as well as make permanent nine district court seats that are now temporary).  So filling vacancies is a priority.

Or at least it should be, if you value having an effectively functioning federal court system with fair, independent, and unbiased judges ensuring that everyone’s rights are protected.

But the Republicans’ strategy since President Obama took office has been to gum up the works as much as possible, to make the confirmation process as slow as they can get away with in order to maximize the number of vacancies available for the next (Republican) president to fill.  This has damaged our courts and coarsened our politics.

In addition to DeArcy Hall, there are 14 other circuit and district court nominees ready for a vote.  There is no reason not to act on every single one of them before the Thanksgiving recess.


Pat Toomey's Insulting Explanation for Withholding Blue Slips

Pennsylvania’s Republican Senator Pat Toomey has been harshly criticized for collaborating with his party’s efforts to obstruct Third Circuit nominee L. Felipe Restrepo a judicial nominee from Pennsylvania who Toomey says he supports.  The senator now appears to be doing the same thing with several Pennsylvania district court nominees who he himself actually recommended to the White House.

Specifically, he is refusing to submit the “blue slips” for Eastern District nominee John Younge, and for Western District nominees Robert Colville, Susan Paradise Baxter, and Marilyn Horan.  All four were recommended by both Toomey and his Democratic colleague, Bob Casey.  When the White House nominated them back in July, both senators praised them.  However, only one of the senators actually did something to move the nominations: Casey swiftly submitted his “blue slips,” which is how senators signal that they don’t object to the Judiciary Committee considering a judicial nominee from their state.  Blue slips aren’t part of Senate or committee rules; they are simply a courtesy of the chairman, who decides for himself the importance he gives them.  Under current practice, the chairman won’t schedule a hearing until he gets blue slips from both  home state senators.

In the nearly five months since the four Pennsylvanians were nominated upon Toomey’s recommendation, he has refused to submit his blue slips.  When a reporter from the Butler Eagle asked for an explanation, he was told that Toomey was waiting for the committee to complete its background investigation of the nominees.  This is the same line he eventually settled on with Restrepo, an explanation that was full of holes and simply not believable.  Nor is it any more believable now.  From the Butler Eagle:

According to a Toomey staffer, the senator will not submit the blue slip for any judicial candidate until the investigation is done, just to make sure the candidates’ backgrounds are clear. If any problems turn up in the investigation and the blue slip already is turned in, there is nothing to stop a vote on the nominee, the staffer said.

That’s simply false.  Just ask Steve Six, a Tenth Circuit nominee from Kansas in 2011, when Democrats held the Senate majority.  Republicans home state senators Pat Roberts and Jerry Moran submitted their blue slips, and Six had a confirmation hearing.  But afterward, the senators rescinded their blue slips.  Then-Chairman Patrick Leahy, who supported the nominee, was not at all happy about this.  Nevertheless, he chose to accede to the home-state senators’ modified wishes, and he never held a committee vote for Six, which essentially ended the nomination.

Does Toomey really think the current chairman, who is of his own party, would not show a similar courtesy to Toomey that Democrat Patrick Leahy showed to the Republican senators from Kansas?  Chuck Grassley might not appreciate Toomey’s lack of faith in him.

Or perhaps Toomey is assuming his constituents won’t realize that the story he is peddling makes no sense.

With Restrepo and four district court nominees, Toomey continues to collaborate with Washington, DC party leaders to obstruct judicial nominees he says he supports.  Individuals and businesses in Pennsylvania who rely on a functioning court system are the ones who pay the price.


An Anniversary Pat Toomey Should Be Ashamed Of

Today is the one-year anniversary of the nomination of L. Felipe Restrepo to the Third Circuit Court of Appeals.  That Restrepo hasn’t yet been confirmed says volumes about Senate Republicans, and especially Pat Toomey.

When Restrepo was nominated, both of his home state senators – Democrat Bob Casey and Republican Pat Toomey – released enthusiastic statements of support.  Unfortunately, only one of them matched his words with deeds.  Casey submitted his “blue slip,” signaling his approval for the Judiciary Committee to take up the nomination.  Toomey didn’t.  That’s critically important, because under current practice, the chairman won’t schedule a hearing let alone hold a committee vote without blue slips from both  home state senators.  So as Toomey sat on his hands, month after month went by with no hearing for Restrepo.  As winter turned to spring, people were wondering where Toomey was on Restrepo’s nomination.

In early May, as the Huffington Post’s Jen Bendery reported, Chairman Chuck Grassley said he’d hold a hearing once Toomey got his blue slip in.  When Pennsylvania constituents with the National Council of Jewish Women tried to meet with Toomey’s office to ask why he was blocking Restrepo, they were turned away.

Within a few days came a slew of bad in-state press for the senator, including articles in the Philadelphia Inquirer ("A judicial nominee waits; Toomey gets blamed"), the (Allentown) Morning Call ("What's Holding Up a Pa Appeals Court Nominee?"), the Pittsburgh Post-Gazette ("Confirmation Vote on Pennsylvania Jurist Awaits 'Blue Slip' from Toomey"), and the Legal Intelligencer ("Political Maneuvers Holding Up Nominee for Third Circuit"). Toomey's obstruction of the man who would be only the second Latino judge ever on the Third Circuit (and the first from Pennsylvania) has also prompted coverage in the Latin Post ("Democrats, National Groups Urge GOP Senators to Expedite Nomination Process of Judge Luis Felipe Restrepo After Delays"), criticism from leading civil rights figure and PFAW Board member Dolores Huerta ("Toomey and Republicans: Do Your Job, Confirm Restrepo"), and a request from the Hispanic National Bar Association that Toomey urge the Judiciary Committee to swiftly consider the nomination.

Toomey finally broke his silence and blamed Grassley, saying that he was waiting for the committee’s background investigation to be completed, an explanation that didn’t pass the laugh test.  After all, Restrepo already had a thorough background investigation for his confirmation to the district court in 2013, so why would it take so long to complete one to cover only the short interval since then?  And why didn’t Toomey mention this when he had been asked about it earlier?  Nor had Grassley said anything about this initially.  After this embarrassment, the two Republican senators coordinated their stories more effectively (as has been the case with Grassley and the other GOP Senators who, unlike their Democratic counterparts, withhold their blue slips for months).

Finally, Toomey submitted his blue slip on May 14, half a year after the nomination.  By this time, the vacancy had been formally designated a judicial emergency, and it became known that a second vacancy would be opening on the court during the summer.  Fortunately, there was time for Chairman Grassley to schedule a hearing for Restrepo before the Memorial Day break.  And perhaps he would have done so, if Toomey had made any effort to make it happen.  In fact, with Toomey’s acquiescence, the hearing was delayed until June 10, nearly a full month after Toomey had submitted his blue slip.

But that didn’t end the delays.  The next step in the confirmation process is the committee vote.  Grassley put a Restrepo vote on the agenda for late June, which was great.  However, Grassley has routinely exercised the right to hold over a vote on a nominee without cause, and his staff signaled he would do this to Restrepo (again, with no explanation as to why).  This gave Toomey plenty of time to do what his constituents were asking him to do: step up and ask Grassley not to needlessly delay advancing Restrepo to the full Senate.  Unfortunately, when asked if Toomey would talk to Grassley, Toomey’s office ducked the question, saying that the Pennsylvania senator isn’t a member of the committee and does not control the scheduling of votes.  Of course, senators routinely speak to their colleagues to help advance home-state nominees who they support.  No one was tying Toomey’s hands but himself.

Finally, on July 9, eight months after being nominated, Restrepo was approved by the committee by unanimous voice vote.  At that point, it was up to Toomey’s fellow Republican, Majority Leader McConnell, when to hold a confirmation vote.  With Toomey’s help, the Senate could have confirmed Restrepo quickly, and certaily before the summer recess would begin a month later.  It soon became clear, however, that Toomey was not pressing McConnell on timing on a vote, and the senators left town until September.

And now here we are, in mid-November, and Restrepo remains unconfirmed, the result of Toomey’s collaboration with his party leaders to obstruct judicial nominations as much as possible. For individuals and businesses in Pennsylvania (as well as New Jersey and Delaware, the other two states within the Third Circuit), having two vacancies unfilled means not having timely access to justice.  This judicial emergency could have and should have been filled many months ago.

Restrepo was nominated one year ago today.  It is an anniversary that Pat Toomey should be ashamed of.


Grassley's Moves Against Democratic Senators' Judicial Nominees

Since Republicans took over the Senate, they’ve used their control of the Judiciary Committee (through Chairman Chuck Grassley) and of the Senate floor (through Majority Leader Mitch McConnell) to make the consideration of judicial nominees as slow as possible.  That only nine have been confirmed this year is ridiculous, and it is why judicial vacancies and emergencies have skyrocketed since the start of the year.

But there’s been hope, in the form of two nominees from Iowa who were recommended to the White House by Chuck Grassley.  One of them (Rebecca Goodgame Ebinger) is President Obama’s most recent nominee, having been nominated on September 15.  Grassley wants both Iowans confirmed quickly.  Since Grassley promised to process nominees in the order he received them last spring, he should have pulled out the stops to process all the other nominees so the committee could quickly get to Ebinger.

But that isn’t what’s happened.  Instead, Grassley leapfrogged her over ten longer-waiting district court nominees for the one and only judicial nominations hearing he held last month.  Some of those nominees are from states with at least one Republican senator, where he can count on them to delay submitting their blue slip for months, a way the GOP can slow down the process as much as possible.  (For an example of how this works, just ask Pennsylvania’s Pat Toomey.)  But four of the skipped nominees come from states with two Democratic senators, who – wanting to see their recommended nominees confirmed as soon as possible – had turned in their blue slips early on:

  • Inga Bernstein (Massachusetts), nominated July 30
  • Mary McElroy (Rhode Island), nominated September 8
  • Stephanie Gallagher (Maryland), nominated September 8
  • Clare Connors (Hawaii), nominated September 8

Grassley hasn’t held another judicial nominations hearing since then, so they are still waiting.

In the meantime, the committee last week advanced Ebinger and four other nominees to the full Senate.  In the order they were nominated, they are:

  • Julien Neals (New Jersey), nominated February 26
  • Mark Young (California), nominated July 16
  • Leonard Strand (Iowa), nominated July 21
  • Gary Brown (New York), nominated July 30
  • Rebecca Ebinger (Iowa), nominated September 15 (and the only one of these five that is not a judicial emergency)

But even here, Grassley found a way to leapfrog his nominees.  Since the Senate has been voting (albeit ridiculously slowly) on nominees in the order they’ve come out of the Judiciary Committee, a judicial nominee’s chances of getting a vote from the GOP-controlled Senate by year’s end are likely higher if they are listed ahead of the Iowa nominees.  A press for floor votes for both Iowans should help those ahead of them in line: Not just the nominees already waiting weeks and months since committee approval, but also the ones just approved by the committee but nominated long before Ebinger.

But in sending the list of five approved nominees to the full Senate, Chairman Grassley made sure to list the Iowans first.  That’s not fair to Neals, who was nominated nearly seven months before Ebinger, or to Young and Brown, or to any of the people waiting for justice in their overburdened judicial districts.

It’s also bad news for the Democratic senators who recommended them, who know full well that Grassley’s machinations hurt the chances of timely confirmation for their chosen nominees.

Putting both the hearing and the confirmation list leapfrogging together, that’s a lot of Democratic senators who Grassley has moved against:

  1. Elizabeth Warren (MA)
  2. Ed Markey (MA)
  3. Jack Reed (RI)
  4. Sheldon Whitehouse (RI) – one of Grassley’s fellow members of the Judiciary Committee
  5. Barbara Mikulski (MD)
  6. Ben Cardin (MD)
  7. Brian Schatz (HI)
  8. Mazie Hirono (HI)
  9. Robert Menendez (NJ)
  10. Cory Booker (NJ)
  11. Dianne Feinstein (CA) – one of Grassley’s fellow members of the Judiciary Committee
  12. Barbara Boxer (CA)
  13. Chuck Schumer (NY) – one of Grassley’s fellow members of the Judiciary Committee
  14. Kirsten Gillibrand (NY)

They are learning the hard way that a chairman’s prerogatives can be abused.


See, It's Not So Hard to Be Fair to Judicial Nominees!

Judiciary Committee Chairman Chuck Grassley scheduled a committee vote on five judicial nominees for this morning.  Four of them had their hearings just two weeks ago.  It is hardly the norm for Grassley to hold committee votes for Obama judicial nominees so quickly.

So what’s so special about these four?  Well, actually, it’s just two of them that are the cause of this departure from Grassley’s pattern of obstruction: Leonard Strand and Rebecca Ebinger are from his home state of Iowa, and Grassley is the one who recommended them to the White House.

Ebinger was leapfrogged over ten other nominees so Grassley could include her in the committee hearing two weeks ago.  In fact, Grassley and fellow Iowa senator Joni Ernst turned in their blue slips approving her nomination before her paperwork was even submitted to the Judiciary Committee.  How’s that for effectiveness?

Fortune is shining down on two other nominees, as well.  Gary Brown (Eastern District of New York) and Mark Young (Central District of California) had the good fortune to share a hearing day with the Iowa nominees, and they were also scheduled for a committee vote today, just two weeks later.

But it wasn’t only the scheduling of the committee vote that was unusual: the fact that Republicans didn’t delay the vote by at least a week was equally out of the ordinary for them.  Once Obama became president, Republicans began to exercise the right of the minority party to have a committee vote “held over” (delayed) by at least a week without cause in all but a handful of exceptions, an unprecedented abuse of the rules.  They have continued this practice as the majority party, even though they are the ones scheduling the initial votes in the first place. 

As we said when we first wrote about this particular tool of obstruction in 2011:

Voting on a federal judicial nomination is an extremely serious responsibility and one that requires diligent research and thought. So if senators sincerely have questions that have not been answered, or genuine and substantial concerns about a nominee's fitness for the bench, then no one should begrudge them an extra few days to gather additional information.

But when Republicans exercise this option for every nominee, even those who are strongly supported by their home state Republican senators and have no opposition whatsoever, then their sincerity must be called into question.

But today, although it was the first time on the agenda for Strand and Ebinger (the two Iowa nominees) and for Brown and Young (the New York and California nominees), Chairman Grassley made sure they all got a timely vote rather than holding them over.

That was the right thing to do.  Would that it weren’t so rare.

As today’s committee meeting shows, it really isn’t hard to treat judicial nominees fairly, giving them full but timely consideration.  You shouldn’t have to be Chuck Grassley’s hand-picked judges (or be lucky enough to share a hearing with them) to get that fair treatment.


Senate GOP Deigns to Allow One Judicial Confirmation Vote

Mitch McConnell is allowing the Senate to vote on a judicial nominee later today, only the ninth such vote the majority leader has allowed this year.  The long journey of New York’s Lawrence Vilardo from nomination to confirmation typifies the dramatically different ways Senate Democrats and Republicans regard our nation’s federal judicial system.

In July of 2014, Judge Richard Arcara of Buffalo announced his plans to take senior status early in 2015.  Just three weeks later, New York Sen. Chuck Schumer recommended Vilardo to the White House, which thoroughly vetted him and nominated him on February 4 of this year.  Especially since the last remaining active judge in Buffalo was going to be taking senior status a month later, leaving it without an active federal judge for the first time in more than half a century, needless delay would be particularly harmful.  Unfortunately, although Vilardo could have been confirmed months ago, it is only today that the Senate is acting to fill the vacancy.

First, his hearing was delayed.  Judiciary Committee chairman Chuck Grassley holds confirmation hearings infrequently and forces nominees to wait weeks or months longer than necessary for their hearing.  In the first ten months of the year, Grassley has held only seven confirmation hearings for circuit and district court nominees, and they usually could have accommodated more nominees than Grassley allowed.  So it wasn’t until early May that Vilardo had his hearing.

Next, the Judiciary Committee was scheduled to vote on Vilardo’s nomination on May 21.  However, Grassley delayed the vote for two weeks without explanation.  This actually came as no surprise, since Senate Republicans have made unexplained and unjustified delays of President Obama’s judicial nominations a routine part of the confirmation process.  But after this delay, the committee approved Vilardo by unanimous voice vote on June 4, sending his unopposed nomination to the full Senate.

In the nearly five months since, the nomination has languished, as Senate Republicans have refused to schedule a vote.  Schumer took to the Senate floor to formally request a vote in July, so that this and two other New York vacancies could be filled before the Senate’s extended summer recess.  It only takes one senator to scuttle such a request, and Grassley took to the floor to say no.  Grassley did not claim that senators needed more time to vet the nominees.  Nor did he claim that there were problems with the nominees.  Instead, he said the Senate should not vote on any of the New York nominees because the Senate was planning to vote in September on a Missouri nominee who had been waiting longer.  He also cited the previous confirmation of many of President Obama’s judicial nominees throughout the country as an excuse, as if that were somehow a justification for denying New Yorkers effectively functioning courts even though the Senate was fully prepared to vote.  Grassley's action made clear that even when everyone agrees that particular nominees are highly qualified to fill critically important positions in our nation’s judiciary, the GOP regards allowing our courts to function effectively as a major concession to the Democrats.

The same thing happened in mid-September, this time with Texas Senator John Cornyn instead of Grassley serving as the hatchet man.  Cornyn claimed the Senate should delay voting on the New York nominees because Senate Democrats had held confirmation votes for several judges at the end of last year’s lame duck session – as if that were a legitimate justification.  Further weakening Cornyn’s credibility, he failed to mention that three of those nominees were from Texas, and that he himself had specifically urged the Democrats to confirm them during the lame duck.

At the end of September, the president of the New York State Bar Association condemned the delays and urged the Senate to swiftly vote on Vilardo and all the other pending nominees.

Last week, McConnell allowed the Senate to confirm one of the New York nominees, Ann Donnelly.  And today, he is finally allowing a vote on Vilardo.

As noted above, this is only the ninth judicial confirmation of the year.  In contrast, when Democrats took over the Senate during George W. Bush’s last two years in office, they had let the Senate confirm 34 judicial nominees at this same point.  So while judicial vacancies and judicial emergencies fell during 2007, both have risen significantly in 2015 due to GOP refusal to process nominations in a timely manner.

So Lawrence Vilardo’s confirmation later today is something to celebrate.  But it also begs the question of why Senate Republicans are limiting today’s vote to just one nominee.


Leapfrog Day at the Judiciary Committee

Progress in moving judicial nominations is always welcome.  But small increments of progress also serve to shine a light on the greater obstruction that is going on.  That happened earlier this week when the Senate held a confirmation vote on one long-waiting nominee, but did nothing on eight additional nominees who were long ago fully vetted and advanced without opposition by the Judiciary Committee.

And it’s happening Wednesday morning, as the Committee holds a hearing for four district court nominees.  It’s good that Chairman Chuck Grassley is holding a hearing for two nominees from Iowa and one apiece from New York and California.  But it begs several questions.  For instance, since there are ten other nominees waiting for their opportunity to appear before the committee, why are there only four nominees at today’s hearing, rather than five or six?  And why has Grassley never held more than one hearing per month?  No wonder there is such a backlog of nominees at the committee stage, most of whom were nominated back in July or earlier.

In fact, all of them were nominated before one of the nominees up today, Rebecca Goodgame Ebinger, who Grassley allowed to leapfrog over all the others since he recommended her to the White House to serve in Iowa’s Southern District.  President Obama nominated Ebinger last month.  So why no hearing for Mary Barzee Flores of Florida, who was nominated way back in February on the recommendation of Democrat Bill Nelson and Republican Marco Rubio?  Why no hearing for any of the four nominees for district courts in Pennsylvania, who were nominated in July upon the joint recommendation of Democrat Bob Casey and Republican Pat Toomey?

You shouldn’t have to have been hand-picked by Chuck Grassley to deserve a timely committee hearing.  As chairman, Chuck Grassley should be treating all nominees fairly.  If he wants to be taken seriously in his claims that he is conducting himself responsibly as chairman of the Judiciary Committee, he should ensure that each of the remaining ten nominees has a hearing before Thanksgiving.


Today's Vote Highlights Senate's Failures on Confirming Judges

Good news:  The Senate held a confirmation vote on a judicial nominee today.  Bad news: The Senate held a confirmation vote on only one judicial nominee today.

Ann Donnelly, set to fill a judicial emergency in the Eastern District of New York, was cleared by a unanimous Judiciary Committee way back on June 4, more than four months ago.  On the same day, the committee also unanimously voted to advance two other New York nominees to the full Senate.  Yet after months of delay, Majority Leader McConnell is finally allowing a vote on only one of the three.  Also being ignored are an additional six judicial nominees from other states who were unanimously approved by the Judiciary Committee.  Most of the stalled nominees have been awaiting their floor vote since June or July.  All should have been confirmed by now.

It is hard to fathom a legitimate reason to refuse to schedule a vote on judicial nominees who have been fully vetted and approved by the Judiciary Committee.  After all, that is one of the most important functions of the United States Senate, one that is specifically tasked to it by the Constitution.  Article III, which established the federal courts, was not some afterthought tossed into the nation’s charter document.  When the Senate abdicates its responsibility to consider judicial nominees, it sabotages the effectiveness of the judicial system that is indispensable in protecting the rights of the American people.

Like President Obama, George W. Bush had a Senate controlled by the opposing party in his last two years in office.  But the disparity in how the Senate carried out its constitutional responsibilities is stark.  While the Democratically-controlled Senate had voted on 33 of Bush’s judges at this point in 2007, New York’s Ann Donnelly will be only the eighth judge voted on this year.  Vacancies nationwide are up by more than 50% since the beginning of the year, and judicial emergencies have more than doubled.

So why are Senate Republicans refusing to hold confirmation votes for New York nominees Lawrence Vilardo and LaShann DeArcy Hall?  Why must individuals and businesses in Tennessee be forced to endure understaffed courts rather than have the Senate vote on nominees Waverly Crenshaw and Travis McDonough?  Why do Senate Republicans refuse to allow votes on Mimi Wright of Minnesota, Paula Xinis of Maryland, and John Vazquez of New Jersey?

Perhaps most egregious is the Senate GOP’s obstinate refusal to grant timely consideration to L. Felipe Restrepo of Pennsylvania, whose nomination to the Third Circuit is nearly a year old.  Nominated with the support of both home state senators – Democrat Bob Casey and Republican Pat Toomey – Restrepo was fully vetted and approved by the Judiciary Committee without opposition.  He would fill a vacancy that has been designated a judicial emergency.  While his nomination has been pending, a second vacancy has opened on the same court, making his confirmation even more vital.  Yet despite his words of support for Restrepo, Toomey has collaborated with his GOP colleagues in making sure that his eventual confirmation be delayed as long as possible.

So today’s confirmation vote for Ann Donnelly is good news.  But the Senate’s refusal to vote on the eight other long-waiting circuit and district court nominees is bad news – bad news for the Senate, bad news for the judiciary, and bad news for the Americans whose access to justice is being sacrificed for partisan reasons.


Grassley's Leapfrogging Hurts Everyone, Especially Pennsylvanians

Yesterday, Judiciary Committee Chairman Chuck Grassley announced a scheduled hearing next week for four district court nominees, three of whom were nominated in July.  Once again, he is skipping over Florida’s Mary Barzee Flores, who was nominated way back in February. But he’s skipping over nine other nominees, as well.

That’s because the fourth nominee at the hearing is from Iowa.  Upon Grassley’s recommendation, President Obama nominated Rebecca Goodgame Ebinger for the Southern District of Iowa on September 15.  Grassley has allowed her to leapfrog over:

  • Mary Barzee Flores (Southern District of Florida), nominated February 26, 2015
  • Inga Bernstein (Massachusetts), nominated July 30
  • John Younge (Eastern District of Pennsylvania), nominated July 30
  • Robert Colville (Western District of Pennsylvania), nominated July 30
  • Susan Baxter (Western District of Pennsylvania), nominated July 30
  • Marilyn Horan (Western District of Pennsylvania), nominated July 30
  • Dax Lopez (Northern District of Georgia), nominated July 30
  • Mary McElroy (Rhode Island), nominated September 8
  • Stephanie Gallagher (Maryland), nominated September 8
  • Clare Connors (Hawaii), nominated September 8

During a press conference at the National Press Club in April, 2015, Chairman Grassley stated that under his chairmanship, the Judiciary Committee would consider judicial nominees in the order they came:

I want you to know we take them up the way they come up to us.  Particularly, that is true of judges, as an example.  So the priority’s set by what we receive from the White House.

Other things being equal, few would complain when a chairman moves quickly to advance a nominee from their home state, within reasonable limits.  Last year, for instance, then-Chairman Patrick Leahy scheduled a hearing for Vermont nominee Geoffrey Crawford ahead of three nominees who had been nominated less than three weeks before him, one of whom was for a circuit court.  (He also skipped over three other nominees for whom their Republican home state senators were refusing to submit blue slips.)  Leahy was also holding two hearings a month, so little time was lost.

But ten nominees are a lot to leapfrog, especially when nine of them were recommended and publicly endorsed by both home state senators, and when most were nominated long before Ebinger.  Also relevant is that Grassley’s chairmanship of the Judiciary Committee has been marked with such partisanship.  For instance, with the collaboration of his fellow Republican Pat Toomey of Pennsylvania (who refused to turn in his blue slip for a nominee he'd publicly endorsed on the day he was nominated), Grassley was able to delay a hearing for Third Circuit nominee Phil Restrepo for seven months.

And a quick look at the list of skipped nominees shows that Pennsylvania is bearing the brunt of this delay, as well.  Four of the skipped nominees would serve in that state.  All four were recommended by both Republican Senator Pat Toomey and Democratic Senator Bob Casey, and all were nominated way back in July.  Three of them would serve in the Western District, where these seats have been vacant since 2013.  Casey submitted his blue slip long ago, but Toomey is once again delaying, as he did with Restrepo.

Grassley is playing self-serving and partisan games with our nation’s nonpartisan judiciary, which is a problem for everyone.  And since Toomey is collaborating with Grassley’s obstruction, the people of Pennsylvania are getting particularly hurt.