On July 30, 2015, President Barack ObamaBarack ObamaOvernight Tech: FCC chief gives states more control over internet subsidies | Dems urge Trump to veto bill blocking online privacy rules | House boosts its mobile security Overnight Defense: Pentagon considers more troops for Afghanistan | McCain, Graham won't back short-term funding | GOP defends Trump rules of engagement Paul Ryan sells out conservatives with healthcare surrender MORE nominated Gary Richard Brown, who has been a U.S. Magistrate Judge in the Eastern District of New York since 2011, for a vacancy on that court. He is a well qualified, mainstream nominee, who enjoys the powerful support of New York Democratic Sens. Chuck SchumerCharles SchumerSenate seen as starting point for Trump’s infrastructure plan Dems wait for GOP olive branch after ObamaCare debacle How Obama's White House weaponized media against Trump MORE and Kirsten GillibrandKirsten GillibrandThe Hill’s Whip List: 32 Dems are against Trump’s Supreme Court nominee Senators demand Pentagon action after nude photo scandal Chelsea Clinton to be honored by Variety, Lifetime MORE. The Senate Judiciary Committee approved Brown on Nov. 5, 2015 without dissent. However, the nominee has languished on the floor ever since, primarily due to GOP leaders’ refusal to allow his confirmation debate and vote. Because Brown is an experienced, moderate nominee and the Eastern District of New York requires this vacancy filled, the Senate must swiftly conduct his final debate and vote.
The District currently has three vacancies in fifteen active judgeships. This means that the court lacks twenty percent of its active judicial complement, which complicates swift, economical and fair case disposition. Because the Speedy Trial Act grants criminal matters precedence, litigants involved with civil suits encounter problems securing trial dates and completing their litigation. Resolving cases without one-fifth of the judgeships authorized correspondingly imposes greater pressure on the court’s jurists. Indeed, the opening that Brown would fill is designated a “judicial emergency,” because the post has remained vacant over 675 days and Eastern District judges manage caseloads 40 percent higher than the national average.
Seventeen months ago, the President nominated Brown. Obama lauded his excellent legal career, declaring that he had assembled a “distinguished and impressive” record and had shown “unwavering commitment to justice and integrity.” The White House press release stated that Brown has served as a Magistrate Judge since 2011 and had been an Assistant U.S. Attorney from 1996 until 2005.
However, the Judiciary Committee only conducted Brown’s hearing on Oct. 21, 2015. The New York senators introduced him at the session, praised the jurist’s fine qualifications, and urged prompt Senate confirmation. That hearing progressed well, and the senators who posed questions appeared satisfied with Brown’s answers. On Nov. 5, the committee reported him on a voice vote with minimal discussion and no controversy.
Since November, Brown has languished on the floor awaiting an upper chamber debate and ballot. Senate Republican leaders have stated that they are restoring the chamber to “regular order.” Nonetheless, Brown and many other highly qualified, moderate nominees have waited months for debates and votes. The New York senators have pursued a speedy floor vote, yet Mitch McConnellMitch McConnellThe truth is the latest casualty of today’s brand of politics McCain and Graham: We won't back short-term government funding bill Senate seen as starting point for Trump’s infrastructure plan MORE (R-Ky.), the Majority Leader, has not set it. Numerous Democratic members have sought unanimous consent to vote on Brown and nineteen remaining district nominees who need final ballots, yet other senators have objected. If the GOP had followed regular order, Brown would have secured floor consideration long ago.
It is past time for the chamber to vote on Gary Richard Brown. He is a fine, consensus nominee whom both New York senators support. Moreover, the district needs all of its active judges to deliver justice. The District’s judiciary as well as people and businesses litigating in federal court merit a full bench, while Brown deserves a final ballot. Thus, the Senate must hold Brown’s debate and vote before it adjourns.
Carl Tobias is the Williams Chair in Law at the University of Richmond.
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