People For the American Way

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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