Confirmation of judges gets bogged down in Congress

WASHINGTON - The meeting lasted about 160 seconds.

With just a few words, Senate Judiciary Committee Chairman Chuck Grassley (R., Iowa), declared that there would be no vote that day on Luis Felipe Restrepo, a federal judge in Philadelphia who has been waiting more than seven months to be confirmed to fill an emergency vacancy on the Third Circuit Court of Appeals.

To Democrats and their allies, the wait on Restrepo - despite his bipartisan confirmation to the federal bench two years ago and hearty endorsements from both of Pennsylvania's senators, Democrat Robert P. Casey Jr. and Republican Pat Toomey - is an example of deliberate stalling since Republicans took hold of the Senate in January.

"Delay for delay's sake," Sen. Pat Leahy (D., Vt.), the judiciary committee's top Democrat, said in a recent news release. Republicans have firmly denied that.

"The more everything gets gummed up, the more vacancies there are going to be at the end of President Obama's term, and the Republicans are hoping there are going to be a lot of vacancies for a Republican president to fill," said Paul Gordon, of the liberal People for the American Way.

The power to shape federal courts is one of the more quiet but significant ways a president can influence public law for years to come.

And the more openings there are, the slower cases move to resolution, Gordon and others said.

The delayed vote on June 25, as Congress left for a recess, means Restrepo will have to wait until at least next week to get through the committee. After that, he'll await a Senate floor vote.

In the meantime, another seat on the Third Circuit came open Wednesday, when Judge Marjorie Rendell took senior status, creating the sixth opening within Pennsylvania's federal courts. That's the second-most in the nation, after Texas, said Carl Tobias, a University of Richmond law professor.

New Jersey has four open seats on the federal bench, each one also a judicial emergency, a status based on the length of a vacancy and number of court filings.

"They are slow-walking all of these nominees," Sen. Robert Menendez (D., N.J.) recently told NJ.com.

In 2007, when Democrats controlled the Senate and President George W. Bush was in his seventh year in office, the Senate confirmed 22 judges by July 1, said Russell Wheeler, an expert on federal courts at the Brookings Institution.

By July 1 this year, President Obama's seventh in office, the GOP-led Senate confirmed four nominees.

At this pace, the Senate in 2015 would confirm the fewest judges in 50 years, Tobias said.

In November, Obama nominated Restrepo, a judge for the Eastern District of Pennsylvania, to fill a seat on the circuit court that hears appeals of cases brought in Pennsylvania, New Jersey, Delaware, and the U.S. Virgin Islands.

Grassley, in an interview, said the June 25 delay was in keeping with rules, under both parties, that let any senator on the judiciary committee ask for a week's wait before the panel votes. Two nominees for judicial posts in Tennessee were also delayed that day.

Grassley said he could not answer "off the cuff" why it took seven months to schedule a Restrepo vote but that the GOP is acting the same way Democrats have in the past.

A spokeswoman, Beth Levine, later e-mailed that the committee handles nominees in the order they arrive, and that "significant issues" arose with several nominations that preceded Restrepo. She said some nominees that could have been confirmed early this year were jammed through by Democrats late last year.

"Had the historical practice been followed, about the same number of confirmations would have happened by now," she wrote.

Years ago, lawmakers of both parties typically OKd a president's judicial picks unless there was a glaring problem, said Wheeler, of Brookings.

Under Lyndon Johnson and Richard Nixon, the median wait time was less than 30 days, he said. Now, the median time from nomination to confirmation runs to the hundreds of days.

"It's just one more indication of government's inability to do its job," Wheeler said.

Rancor over judges has steadily grown, Tobias said.

In 2013, Democrats invoked the so-called nuclear option to change the Senate rules and speed up confirmations. The move, described as a response to GOP stalling, infuriated Republicans.

Casey called picking judges "a terribly difficult process" under both parties.

Senate rules effectively give home-state senators a veto over judicial appointments, so negotiations between lawmakers and the White House can stall the process even before a nominee is named, especially when opposing parties are involved.

"Sometimes you agree," Casey said. "Sometimes it blows up, and you go back to drawing board."

The Third Circuit seat was open four months, for example, before Restrepo was nominated. In Western Pennsylvania, three of the district court's 10 seats have been vacant 21 months or more without a nominee.

Casey and Toomey have both boasted about their cooperation, noting that all 14 district court nominees they endorsed have been confirmed, more than most states.

But liberal groups took aim at Toomey for taking six months to return a "blue slip" for Restrepo. The signed paper from home-state senators is required before a nominee can advance.

Toomey said he supports Restrepo and signed off as soon as the Judiciary Committee completed a background check. No hearing could have been held anyway until that review was done, he said.

Toomey allies said liberals were just looking to score points as he faces a tough 2016 reelection.

Toomey's critics question his explanation, noting that Restrepo had just been confirmed to his district seat by a Senate voice vote in 2013.

"There wasn't exactly a lot of new stuff to look at," said Gordon, who called on Toomey to now push his GOP colleagues to advance Restrepo.

He has accused other Republicans, too, of using blue slips to slow the process.

Even if Restrepo gets confirmed, he argued, others behind him have still suffered from delay.

A Toomey spokeswoman said he and his staff have "spoken directly to colleagues" and "remain confident" that Restrepo will be confirmed. Toomey has said he expects it "this year."

If so, the judge's promotion will create a new vacancy in Pennsylvania's Eastern District. So would begin another slog toward another confirmation.

@JonathanTamari

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