judicial nominations

PFAW Statement on Senate Confirmation of Luis Restrepo

Today, more than a year after being nominated by President Obama, Judge Luis Restrepo was confirmed to the United States Court of Appeals for the Third Circuit. Today’s vote followed months of needless delays by Senate Majority Leader Mitch McConnell, assisted by Senator Pat Toomey of Pennsylvania and Senate Judiciary Chairman Charles Grassley.

“Americans of every stripe should be glad that Judge Restrepo was confirmed today. He will be a true asset to the Third Circuit Court of Appeals. But Senate Republicans should be embarrassed about how they’ve played politics with the courts for months on end,” said People For the American Way Executive Vice President Marge Baker. “Judge Restrepo was nominated with bipartisan support from his home state senators, but at every turn Republicans delayed and dragged their feet, saying one thing and doing another. Not a single senator raised any concerns about Judge Restrepo’s fitness for the bench—this was anti-Obama politics plain and simple. If Americans need another example of who’s causing gridlock in Washington, the expanse of time that it took us to get to this vote is a perfect example.”

Upon today’s vote, Restrepo becomes the second Latino judge ever to serve on the Third Circuit and the first from Pennsylvania.

Today’s vote comes during an period of historic obstruction of judicial nominees in the Senate. Since Mitch McConnell became majority leader in January 2014, the number of current circuit and district court vacancies has climbed from 40 to 71 today, a nearly 80% increase. Despite Restrepo’s confirmation, the current Senate’s confirmation rate remains far behind that of Democrats who controlled the body during the last two years of President Bush’s term eight years ago.

“During the long wait for Judge Restrepo’s confirmation, yet another vacancy has opened up on the Third Circuit,” said Baker. “If Republicans decide to start caring about the ordinary people they purport to represent, moving expeditiously to fill that vacancy, among others, would be a reasonable place to start.”

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Carly Fiorina Promises To Nominate Anti-Choice Supreme Court Justices

In a conference call with anti-abortion activists last night, Republican presidential candidate Carly Fiorina promised that, if elected, she would “nominate pro-life justices” to the Supreme Court along with signing a budget defunding Planned Parenthood and pushing through a national 20-week abortion ban.

“Here’s what I will do and here’s what I want people to hold me accountable for,” she said on a conference call hosted by the Susan B. Anthony List's Marjorie Dannenfelser and Priests for Life's Frank Pavone. “If President Obama vetoes our attempts between now and the election — which, unfortunately, sadly, he may — I will deliver a budget that defunds Planned Parenthood. I will nominate pro-life justices. I will get the Pain Capable Unborn Child Protect Act passed.”

When she ran for Senate in California in 2010, Fiorina said that abortion rights would not be a litmus test for her votes on Supreme Court nominees.

Fiorina, who has come under fire for a series of falsehoods on the campaign trail, including repeatedly describing a video of Planned Parenthood that does not exist, also told participants that her main strategy for handling hostile questioning is to always “speak the truth.”

“You know, the truth shall set you free,” she said. “We all know this, we read it in the Bible. The truth shall set you free.”

“Don’t worry so much about finding exactly the right words, if that’s what you’re worried about,” she advised. “Worry about, concentrate on speaking the truth. Speak what you know to be the truth. that’s a powerful thing, it’s always a powerful thing, and that’s what I will keep doing. No one is going to frighten me into silence.”

Dannenfelser, the president of the Susan B. Anthony List, has made no secret of her admiration for Fiorina, telling call participants that Fiorina is a model candidate for her organization, which largely endorses female candidates opposed to abortion rights.

Dolores Huerta Criticizes Sen. Toomey, Senate Republicans for Holding Up Restrepo Nomination

This past Thursday, Senate Republicans disregarded the procedure they’ve been using all year and decided that they would skip over the confirmation vote for Judge L. Felipe Restrepo for the important U.S. Court of Appeals for the Third Circuit. Judge Restrepo would be only the second Latino to ever serve on this prestigious federal court.

Though no one has questioned Judge Restrepo’s qualifications for the job, Republican Senator Toomey is collaborating with Senate GOP leaders to prevent a confirmation vote.

Civil rights leader and People For the American Way (PFAW) board member Dolores Huerta stated:

“Shame on Senator Toomey and Senate Republicans for holding up the confirmation of highly-qualified Judge Restrepo. Republicans are once again using obstructionist tactics in a way that harms our country, and this time, it impacts Latinos in particular. We can’t let Senate Republicans get away with this blatant, partisan obstruction.”

PFAW Senior Legislative Counsel Paul Gordon explained:

“By skipping over Judge Restrepo, Senate Republicans threaten not to hold a confirmation vote by the end of the year, meaning that the reset button could be hit on his confirmation. If they do that, he’d have to be re-nominated and re-processed by the Judiciary Committee, even though Republicans and Democrats alike have voiced only support for Judge Restrepo.”

To schedule an interview with a PFAW spokesperson on this issue, please contact Laura Epstein (lepstein@pfaw.org).

Background on Restrepo’s Nomination Process

In November of last year, President Obama nominated federal district Judge L. Felipe Restrepo to be a judge on the important U.S. Court of Appeals for the Third Circuit. Unfortunately, Republican Senator Toomey and Senate GOP leaders in Washington DC have up to this point refused to hold a confirmation hearing.

Judge Restrepo would be only the second Latino to ever serve on the Third Circuit Court of Appeals. He would also be the first judge on the court to have experience as a public defender. It is important to fill this vacancy: The caseload is so high that it has been formally designated a judicial emergency, and there is a second vacancy on the same court. No one has questioned Judge Restrepo’s qualifications for the job, and Senator Toomey said great things about Judge Restrepo. But for over a year, every time that action has been needed to prevent Judge Restrepo from falling victim to Washington partisan politics, Toomey has chosen to be silent.

It’s critical that Judge Restrepo be confirmed before senators leave town for the holidays, which could be as soon as next week. He’s at the top of the list of judicial nominees waiting for a vote. But, apparently with Toomey’s acquiescence, GOP leaders have skipped Judge Restrepo and plan to confirm another nominee on Monday.

Because the Senate will likely adjourn at the end of this week, skipping Judge Restrepo could mean his confirmation vote will not happen this year. This could mean that in 2016, Judge Restrepo would have to be re-nominated by President Obama and re-submitted to the Judiciary Committee, further delaying his confirmation process.

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An Anniversary Pat Toomey Should Be Ashamed Of

Pat Toomey has spent a year helping his party obstruct the nomination of L. Felipe Restrepo, who he says he supports.
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Reckless Obstruction: Blocking Nominees, Blocking Justice

To: Interested Parties
From: Paul Gordon, Senior Legislative Counsel, People For the American Way
Date: UPDATED October 5, 2015
Re: Reckless Obstruction: Blocking Nominees, Blocking Justice

Under the leadership of Mitch McConnell, the Republican-controlled Senate has surprised even cynical observers at the extent to which it has failed to fulfill its most basic duties.  Few of its responsibilities are more important than confirming qualified federal judges: Courts are the infrastructure of justice, just as important to our constitutional rights as roads and bridges are to transportation.

Unfortunately, the Republican Senate is failing to carry out its basic obligation of confirming federal judges.  They are weakening the entire third branch of the United States government and harming individuals and businesses across America.  As we head into autumn, it is incumbent on Senate Republicans to process judicial nominees in a professional manner.

Failing to confirm judges is not at all the norm even when the Senate and the White House are held by different parties.  A useful basis of comparison is George W. Bush’s final two years in office, when Democrats took over the Senate after the 2006 midterms.  A week after those elections, Senator Patrick Leahy – who was about to become chairman of the Judiciary Committee – criticized Republicans for blocking votes on more than a dozen of Bush’s qualified nominees.  Partisanship took a back seat to responsible governing.

So in 2007, Leahy and new Majority Leader Harry Reid worked together to make sure the Judiciary Committee and full Senate fulfilled its constitutional responsibilities.  During those two years, the Senate vetted and confirmed 68 of Bush’s circuit and district court nominees.  In fact, the Democratic Senate had already confirmed 33 of Bush’s judges by this same point in the year (October 5 of 2007).  In stark contrast, the McConnell Senate has so far confirmed only seven Obama judges. No matter how you look at it, 33 ≠ 7.

The figure below shows the stark difference in the pace of confirmations under today’s Republican-controlled Senate as compared to the Democratic-controlled Senate of Bush’s last two years.

graph1

Another way of contrasting how seriously Senate Democrats took their job in 2007-2008 versus the attitude of Republicans today is to track the number of vacancies. Judicial vacancies open regularly and predictably, since judges usually announce their intent to retire or go into semi-retirement up to a year in advance. Just to keep the number of vacancies at an even level requires that several new judges be confirmed each month.

At the beginning of 2007, there were 56 circuit and district court vacancies. Throughout the next two years, the number of vacancies generally remained at 50 or fewer, getting as low as 34 in the early fall of 2008. Because an unusually high number of vacancies opened up after Election Day, that number climbed back to 55 by Inauguration Day, but even with that increase, the number of vacancies ended up at about what it had been two years earlier.

Today, in stark contrast, the number of vacancies is climbing steadily, from 40 at the beginning of the year to 63 today, a nearly 60% increase.

graph2

We see the same thing with judicial emergencies, a formal designation assigned by the Administrative Office of U.S. Courts for vacancies where the caseload per judge is so high that it endangers access to justice. Judicial emergencies have skyrocketed from 12 at the beginning of the year to 31 today. As the chart below shows, Democrats in the Senate during Bush’s last two years did not allow the number of judicial emergencies to increase in a similar fashion, and in fact the number generally remained steady or decreased during most of those two years.

graph3

Majority Leader McConnell could start turning this situation around simply by scheduling votes. As the Senate prepares to leave town for its October recess, one circuit and eight district court nominees have been fully vetted and approved by the Judiciary Committee and are ready for a confirmation vote. Six of these have been languishing on the Senate floor since June or July. Six of the nominees would fill judicial emergencies. All were approved by the Judiciary Committee unanimously. Yet McConnell has made sure that none of these gets a timely confirmation vote. (Also denied floor votes are five nominees for the Court of Federal Claims and one for the Court of International Trade, all approved without opposition by the Judiciary Committee last year in the previous Congress and then again in February in the new one.)

Those being blocked include L. Felipe Restrepo of Pennsylvania, President Obama’s nominee for the Third Circuit Court of Appeals.  He was nominated in November with the support of his two home state senators, Democrat Bob Casey and Republican Pat Toomey.  He could and should have been confirmed long ago.  Unfortunately, Judiciary Committee Chairman Chuck Grassley waited a full seven months after Restrepo’s nomination before even holding a hearing, even though he would fill a judicial emergency.  (The chairman’s suggestion that the committee needed all that time to go through his background investigation was simply not believable, especially since Restrepo had just recently undergone an investigation when the Senate had confirmed him to a district court judgeship in 2013.)  Adding insult to injury, Senator Toomey is apparently collaborating with his party leadership’s plans to delay that vote for as long as possible.

Also waiting too long are three district court nominees from New York: Ann Donnelly, LaShann DeArcy Hall, and Lawrence Vilardo, all of whom were approved unanimously by the Judiciary Committee in early June.  At the end of July, after putting up with eight weeks of delay, New York Senator Chuck Schumer asked for unanimous consent for the Senate to hold a confirmation vote for them.  However, Grassley refused, thereby preventing a vote.  Importantly, Grassley did not claim that senators needed more time to vet the nominees.  Instead, he said the Senate should not vote on the three New York nominees because the Senate was planning to vote in September on a nominee who had been waiting longer, and because the Senate had confirmed many of Obama’s judicial nominees in 2009-2014, including several during the lame-duck session last December.  Of course, that is of no help to the individuals and businesses whose access to justice is curtailed by the lack of judges in New York.

For a chairman of the Judiciary Committee, it was a revealing moment, one that contrasted the current partisanship to the more responsible approach to running the Senate we saw in Bush’s last two years.  Even when Republicans agree with Democrats that particular nominees are highly qualified to fill critically important positions in our nation’s judiciary, the GOP regards scheduling a vote as a major concession to the Democrats.  The current Republican majority simply does not take governing seriously.

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