Judge Luis Felipe Restrepo is the latest hostage in the protracted “confirmation wars.” President Obama nominated the highly qualified, consensus judge one year ago, at the powerful bipartisan suggestion of Pennsylvania Sens. Bob CaseyRobert (Bob) Patrick CaseySenate Democrats call for diversity among new Federal Reserve Bank presidents Manchin, Sanders to seek deal on Biden agenda Democrats struggle to gain steam on Biden spending plan MORE (D) and Pat Toomey (R), but he waited seven prolonged months on a hearing. Now, as in 2007, this Pennsylvania federal district court judge’s unopposed Third Circuit nomination needs a floor vote in a Senate not controlled by the president’s party.
On March 15, 2007, the Senate with a Democratic majority approved President George W. Bush’s nomination of Judge Thomas Hardiman on a 95-0 vote seven days after the Judiciary Committee reported him.
This precedent is a critical reason why the Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellManchin backs raising debt ceiling with reconciliation if GOP balks Biden needs to be both Mr. Inside and Mr. Outside Billionaire tax gains momentum MORE (R-Ky.) must promptly set a floor ballot for Restrepo whom the panel approved on a July 9 voice vote without dissent. The jurist would fill one of 30 openings which the U.S. Courts have designated judicial emergencies. On July 1, Third Circuit Judge Marjorie Rendell also assumed senior status, which means that the court encounters two openings in fourteen judgeships.
One spokesperson for Toomey observed that the lawmaker had talked directly with McConnell to stress the importance of having Restrepo confirmed, although this individual failed to state whether Toomey has actually requested a swift vote. As Senate Minority Leader Harry ReidHarry Mason ReidHarry Reid calls on Democrats to plow forward on immigration Democrats brace for tough election year in Nevada The Memo: Biden's horizon is clouded by doubt MORE (D-Nev.) declared in a Julystatement on the Senate floor, if Toomey merely requested that Judge Restrepo be confirmed immediately, Reid was certain the Senate would approve the jurist the following week.
The White House has assiduously cooperated with Casey and Toomey, who have coordinated when filling one Pennsylvania Third Circuit opening and 14 district court vacancies since 2011. Both have closely scrutinized applicants and recommended strong people whom Obama frequently nominates. However, the upper chamber slowly considers nominees. Most important has been GOP delays of final ballots. For instance, the Western District confronted three vacancies without nominees for almost two years. The openings have delayed federal court lawsuits, making individuals and entities wait forever on case disposition.
Casey and Toomey originally proposed Restrepo for the Eastern District, and the Senate confirmed him with a June 2013 voice vote. Both took credit for suggesting Restrepo’s Third Circuit nomination in 2014 press releases. Toomey declared that Restrepo would “make a superb addition to the Third Circuit,” but the politician kept his “blue slip” - which allows a nominee to advance - from mid-November until mid- May 14, although Casey tendered his last November. Restrepo’s June 10 hearing should have been convened months earlier because he received nomination the identical day as Kara Farnandez Stoll, a Federal Circuit nominee, who had a March hearing, April panel approval and July appointment.
In Restrepo’s hearing, Toomey repeated that Restrepo would be a stellar Third Circuit addition. The judge thoroughly and frankly responded to questions, and senators posing them seemed satisfied. For instance, Sen. Thom Tillis (R-N.C.), who chaired the hearing, proclaimed that Restrepo had assembled an enviable batting average, as the Third Circuit overturned merely two of his decisions.
McConnell has not publicly remarked when he would schedule Restrepo’s final debate and ballot. However, in early June, McConnell intimated he might not permit votes for additional Obama circuit nominees, but the Majority Leader did finally grant Stoll, who had languished ten weeks, a July ballot and the chamber approved her 95-0.
The Third Circuit requires all its jurists to furnish justice and Judge Restrepo, who is a sterling, consensus nominee, has waited 12 months. Thus, the chamber should have accorded Restrepo a floor vote as expeditiously as Judge Hardiman, but the Senate must approve the excellent jurist before 2015 ends.
Tobias is the Williams Chair in Law at the University of Richmond.