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Posts Categorized: federal judiciary

  • Benched! A “thorough vetting” or a needless delay?

    The Third Circuit Court of Appeals needs another judge.

     

    Benched!For the past 675 days, the former seat of Senior Judge Anthony Scirica has sat vacant. The Administrative Office of the U.S. Courts named the seat a judicial emergency earlier this year because the circuit cannot properly manage its current caseload without another active judge.

    The problem should be easy to solve. On November 12, 2014, with the support of Pennsylvania Senators Bob Casey and Pat Toomey, President Obama nominated District Court Judge L. Felipe Restrepo to fill the spot. Yet, 176 days later, Senate Judiciary Chairman Chuck Grassley has not even held a hearing on Judge Restrepo’s nomination.

    Everyone agrees that Judge Restrepo is qualified for the position. He was confirmed as a federal district court judge just two years ago on a voice vote. The American Bar Association  rated him “well qualified.” Senator Toomey, a Republican, said the judge would “make a superb addition to the Third Circuit.”

    So why the delay? In a radio interview on Tuesday, Senator Grassley said that Judge Restrepo was going through a “thorough vetting process” and that the committee is “doing what we normally do.”

    But this delay is anything but normal. At 176 days, Judge Restrepo has already waited nearly three times

    Judge L. Felipe Restrepo

    Judge L. Felipe Restrepo

    as long for his committee hearing as the average wait for Obama’s other circuit court nominees. Kara Farnandez Stoll, who was nominated to a federal appeals court the same day as Judge Restrepo, had a confirmation hearing on March 11 and was voted out of committee on April 23. This disparity is especially telling because Judge Restrepo just went through a rigorous background investigation before he was confirmed to his district court seat in 2013. If anything, having earned the Senate’s approval less than two years ago, Judge Restrepo’s vetting process should take less time, not more.

    And it’s not like Judge Restrepo has been waiting behind a long line of nominees. Stoll is the only circuit court nominee who’s had a hearing in 2015, and on March 11 Grassley convened a hearing with only two nominees on the witness list. Judge Restrepo should have had his hearing then, if not before, but Grassley passed him over.

    Justice delayed is justice denied. For the people of Pennsylvania and the rest of the Third Circuit, justice has been denied for far too long. It’s time for Senator Grassley to end his political charade and to hold a hearing for Judge Restrepo. The time for a “thorough vetting process” has come and gone, and there is a judicial vacancy that desperately needs to be filled.

    May 7, 2015 | Benched, Charles Grassley, Chuck Grassley, federal judges, federal judiciary, Filipe Restrepo, judges, judicial nominations, judicial nominees, judicial selection, Sen. Bob Casey, Sen. Pat Toomey, Third Circuit Court of Appeals
  • Heritage Foundation gets the numbers wrong on judicial nominations

    By Kyle C. Barry
    AFJ Legislative Counsel

    Last week, the Heritage Foundation’s Elizabeth Slattery attacked a Washington Post article about the recent uptick in confirmations for President Obama’s judicial nominees, using it to argue that the Senate has treated Obama’s nominees more favorably than those of President George W. Bush. Slattery’s piece presents a one-sided and ultimately flawed analysis that omits key data points, and fails to acknowledge how Senate Republicans continue to obstruct the confirmation process and block the president from filling a growing list of judicial vacancies.

    Following John Owens’ confirmation to the Ninth Circuit, the Post observed that 19 of Obama’s judicial nominees have been confirmed in 2014 so far (the best first-quarter of any year during his administration), and that Obama has now appointed 235 judges to the federal bench. The Post compared this to the 324 federal judges that Bush appointed during his entire two terms, and reasoned that “if the Senate keeps up close to its current pace, Obama might, after six years, get relatively close to Bush’s eight-year total.” In other words, the Washington Post concluded that things are looking up for Obama’s judicial nominees, even compared to President Bush.

    But the Heritage Foundation claims the Post did not go far enough in explaining how conditions have improved for judicial nominees in the Senate. In a blog post titled “Washington Post Gets the Numbers Wrong on Judicial Nominees,” Slattery zeroes in on the total number of confirmations in the first 15 months of each president’s second term—62 for Obama, 28 for Bush—and uses this data to conclude that “Obama’s confirmation rate has actually been outpacing Bush’s 2-to-1.” “At this rate,” Slattery argues, “Obama is set to steamroll Bush’s total number of confirmations.”

    The problem here is that simply comparing confirmation totals from an isolated 15 month period is hardly an adequate proxy for each president’s ability to fill vacancies and move nominees through the confirmation process. As an initial matter, the overall number of confirmations for Obama and Bush at this point in their presidencies is about the same—Obama has now appointed 235 federal judges, while Bush had appointed 233. Taking the full picture into account, Slattery’s “2-to-1” ratio is plainly arbitrary and incomplete.

    Next, in any event, comparing the total number of confirmations is meaningless without also considering the number of vacancies each president could possibly fill, and the number of nominees the Senate could possibly confirm. Here, Obama has had 35 more total vacancies thus far in his presidency than Bush, and he’s also made 38 more nominations. That alone suggests that, all else being equal or more favorable to President Obama, he should have a much higher number of confirmations than President Bush. Moreover, Obama’s judicial confirmations have not kept pace with new vacancies. During his administration, the number of vacancies has increased by 30—from 55 to the current total of 85. Conversely, the confirmations of President Bush’s judicial nominees reduced the total number of vacancies by 27—from 80 when he took office, to 53 on April 1, 2006.

    Heritage Judicial Vacancies Figure 1

    Given this discrepancy in the number of vacancies and nominations, both the rate of confirmations—the percentage of nominees that the Senate has confirmed—and the rate of judicial appointments—the percentage of vacancies the president has been able to fill—provide a far more useful comparison than the raw total of confirmations. And it’s here that Obama clearly lags behind Bush: Only 79% of Obama’s nominees have been confirmed compared to 89% at this same point for Bush; likewise, Obama has filled only 73% of the total judicial vacancies up to this point in his presidency, while Bush had filled about 82%. By these measures, which account for essential variables that the Heritage Foundation ignored, Bush fared significantly better in getting his nominees confirmed and staffing the federal judiciary.

    Heritage Judicial Vacancies Figure 2

    Heritage Judicial Vacancies Figure 3

    Finally, Slattery’s analysis ignores the ways in which Republican obstruction contributes to Obama’s growing number of vacancies and relatively low confirmation rate. Currently, there’s a backlog of 31 judicial nominees waiting on the Senate floor for a confirmation vote, including six nominees to the vitally important circuit courts of appeals, which, because the Supreme Court hears so few cases, often have the final say on questions of federal law. All of these nominees could be confirmed quickly through unanimous consent or agreed-upon votes, the traditional means of confirming judges. But Senate Republicans have slowed the process by requiring a cloture vote on even the most noncontroversial nominees. For example, a trio of district court judges recently confirmed to the Eastern District of Michigan all failed to earn the 60 votes that Senate rules used to require to invoke cloture. They were then confirmed 98-0, 98-0, and 97-0, respectively, revealing that the demand for cloture votes was merely a charade intended only to waste time. Similarly, Tenth Circuit nominee Carolyn McHugh suffered through a meaningless 62-34 cloture vote despite having the home state support of Utah’s two Republican Senators. She was confirmed 98-0.

    Vacancies also remain high because Republican Senators delay in recommending nominees for seats in their home states. As a result, 31 of the 37 current vacancies without a nominee are in a state with at least one Republican Senator, and 8 of those 31 are critical “judicial emergencies.” Regardless of how many confirmations the Senate records, Americans in these states will be denied justice as they wait for overburdened and understaffed courts to catch up with rising caseloads.

    That 19 judges have been confirmed this year (and that Obama has now confirmed more judges at this point in his presidency than Bush) reflects real progress for the president’s judicial nominees. But focusing on that statistic alone masks the substantial work left to be done. In particular, as nominees wait in line for a vote and Republicans continue to waste valuable floor time, our federal justice system suffers. This isn’t the time for the Senate to accept delays and obstruction as the new normal of the confirmation process, or to celebrate what’s been accomplished so far. This is the time to make the health of our federal courts a priority and take action.

    April 7, 2014 | Elizabeth Slattery, federal courts, federal judges, federal judiciary, Heritage Foundation, judges, judgeships, judicial appointees, judicial emergencies, judicial nominations, judicial selection, judicial vacancies

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