Currently, the only pending court of appeals nominee on the Senate calendar is Judge L. Felipe Restrepo, a nominee to the Third Circuit who just two years ago was unanimously confirmed as a trial court judge in the Eastern District of Pennsylvania. Both Restrepo’s fitness to serve and the pressing need for swift confirmation are plain. In addition to his judicial experience and prior Senate approval, Restrepo had an esteemed career as a practicing lawyer that included time as a public defender—a qualification so rare among circuit court judges that he would be the first ever former public defender on the Third Circuit. Restrepo also has bipartisan support, as his appointment was jointly recommended by both Pennsylvania senators, Democrat Bob Casey and Republican Pat Toomey. The vacancy itself is considered a “judicial emergency” and has been left empty for over two years. In other words, there is no rational reason not to confirm Judge Restrepo immediately.
Yet, as of today, Restrepo’s nomination has been pending for an entire calendar year, and there’s no indication from Senate GOP leadership that a confirmation vote is imminent.
Over the past year, Senate Republicans have delayed and obstructed Restrepo’s confirmation at every turn. First, Toomey and Judiciary Committee Chairman Chuck Grassley forced him to wait eight months for a hearing while publicly disagreeing over who was responsible for the delay. Then after the hearing another month went by before he finally received a committee vote (he was unanimously approved). Since then, Restrepo has been languishing on the Senate floor, where Senate Majority Leader Mitch McConnell has refused for over four months to hold a vote.
Restrepo’s year illustrates Senate Republicans’ strategy to prevent President Obama from filling longstanding vacancies in the hope that they will instead be filled by a future Republican president. This strategy has resulted in just nine confirmations, the slowest pace of judicial confirmations in 55 years. Only one circuit court judge, a nominee to the Federal Circuit, has been confirmed all year.
But while this is a national strategy of obstruction, the resulting vacancy crisis has turned especially acute in Pennsylvania. Even if Restrepo were confirmed today, there’s still another Third Circuit seat that’s been vacant for over four months, and four vacancies on Pennsylvania district courts (actually five once Judge Restrepo is elevated) that have been empty an average of 649 days. The district court vacancies have nominees in the Senate, but despite applauding their nominations, Toomey is once again working with Chairman Grassley to block his own nominees in committee. It’s Restrepo all over again. While Senator Casey immediately gave his approval for the district court nominees to move forward with a confirmation hearing—expressed through the favorable return of a “blue slip” to the committee—Toomey has inexplicably decided to wait for Grassley’s permission
Toomey’s refusal to submit blue slips gave Grassley cover when he skipped over the Pennsylvania nominees for his own nominee from Iowa. Rebecca Ebinger was nominated on September 15th to the Southern District of Iowa, seven weeks after the four Pennsylvania nominees. While asking other Republican Senators like Toomey to wait, Grassley submitted his blue slip immediately and held a hearing for Ebinger just over a month after she was nominated.
McConnell should mark the one-year anniversary of Restrepo’s nomination by immediately scheduling a vote for his confirmation. Toomey should stop playing games and submit blue slips for his own nominees. He should stand up for the people of Pennsylvania who need access to justice and stop allowing McConnell and Grassley to play political games at the expense of Pennsylvania courts.