The Pennsylvania U.S. Senate race could well decide which party captures a Senate majority.
Pennsylvania Republican Senator Pat Toomey repeatedly claims that he has cooperated with Democratic Senator Bob CaseyBob CaseyRNC drops six-figure ad buy for Supreme Court, healthcare fight Red-state Dems in Supreme Court pressure cooker Dems launch attacks ahead of Supreme Court showdown MORE to expeditiously fill all federal court vacancies.
However, Toomey’s record clearly reveals that he bears substantial responsibility for the Pennsylvania Third Circuit vacancy, four Western District Court openings and two Eastern District Court vacancies.
One egregious dereliction of Toomey’s duty to advise and consent on judicial nominees involved Third Circuit Judge L. Felipe Restrepo. Toomey and Casey strongly recommended Restrepo for the Eastern District to which he was easily confirmed in January 2013 and similarly proposed Restrepo’s Third Circuit elevation in 2014. Obama followed that suggestion and nominated Restrepo in November 2014 for an emergency vacancy.
Nevertheless, Toomey only returned his “blue slip,” which allows the confirmation process to proceed, in May 2015 — six months after Casey delivered his. The Judiciary Committee granted Restrepo a June hearing and July voice vote approval.
The most direct analogy to Restrepo was President George W. Bush’s 2007 Third Circuit nomination of Western District Judge Thomas Hardiman. The Democratic majority helped confirm him one week after committee approval.
However, Restrepo languished throughout 2015. During most of that period, Toomey apparently took no steps to ensure the full Senate considered Restrepo’s nomination. Finally, in late 2015, Toomey wrote Senator Mitch McConnellMitch McConnellOvernight Healthcare: High drama for ObamaCare vote | Freedom Caucus chair 'optimistic' about deal | Trump woos right High drama for ObamaCare vote Senate nixes Obama-era workplace safety rule MORE (R-KY.), the Majority Leader, asking him to schedule Restrepo’s floor debate and vote. The jurist was only confirmed 82-6 in January 2016.
Equally troubling was Toomey’s handling of another Third Circuit vacancy to which Obama nominated Rebecca Ross Haywood, an experienced federal prosecutor, who would be the first African American female Third Circuit judge, if confirmed. Toomey disagreed with Haywood’s answers to his questions in a March 2016 private meeting, and he has singlehandedly blocked her hearing since then.
Toomey bears much responsibility for other longstanding vacancies. Obama nominated candidates for three of the four Western District openings and an Eastern District vacancy in July 2015. The committee granted all four December 9 hearings and two Western District nominees January 28 voice vote approval.
Nonetheless, ever since January, the two nominees reported have languished, while the other two have not received panel votes. Toomey has secured no further movement on any of the four. The two who lack committee votes are Casey choices, so panel inaction clearly violates the senators’ agreement, which allows Toomey to recommend one in four nominees.
These problems mean Pennsylvania has one Third Circuit, four Western District, and two Eastern District, vacancies. Lengthy openings make individuals and businesses wait interminably to have their cases resolved, while the openings impose more pressure on overloaded judges.
When Pennsylvanians vote, they should remember Senator Toomey’s claim that he has kept the federal courts filled. However, Toomey actually has obstructed nominees at every level of the federal judiciary (Supreme Court, Third Circuit and Pennsylvania Western and Eastern Districts) and in all stages of the nomination and confirmation processes.
Tobias is the Williams Chair in Law at the University of Richmond.