To predict how the judicial wars between this Republican Senate and President Barack Obama will end, keep an eye on labor lawyer Waverly Crenshaw Jr.
A quarter-century ago, he was the first African-American hired at one of Nashville’s most prominent law firms. Ten months ago, he was chosen for the opening on the local federal trial court. Five months ago, with the blessing of both of Tennessee’s Republican senators, he was endorsed without a dissenting voice in the Senate Judiciary Committee. And since then ... nothing, except that as of last week the judgeship had been vacant a full year, and the backlog of cases has grown such that court administrators have declared a “judicial emergency.” Yet there is a decent chance Congress will go home for the year without acting on him or any of the dozen others whose nominations have advanced just as far. That would be a signal the process of confirming judges, already at its slowest pace in more than half a century, is grinding to a halt earlier than ever in the life cycle of a modern two-term president.
It remains likelier that, before adjourning next week, the majority Republicans will agree to create a handful of new judges — but perhaps only Crenshaw and four more who would also join U.S. District Courts in states represented by two GOP senators.
If that happens, the eight others who got through Judiciary this year (most of whom would also end so-called judicial emergencies) would technically have to go back to that starting gate in January, joining 10 nominees who haven’t yet received a committee vote. And, in a presidential election year, the chances are exceedingly small that any of them — let alone nominees not yet announced for the other three-dozen current vacancies on the trial and appeals courts — would get confirmed after the start of summer.
Judiciary Chairman Charles E. Grassley, R-Iowa, has signaled he will adhere to the longstanding Senate precedent that senators of one party apply almost a blanket block to the judicial nominees of a president from the other party during the last half of his lame-duck year — if for no other reason than to “save” those seats to be filled by a presidential winner potentially from their own side. (This practice is known as the Thurmond Rule after Strom Thurmond, R-S.C., who led a successful filibuster against Abe Fortas to be Supreme Court chief justice on the grounds he’d been nominated in 1968 — just months before President Lyndon B. Johnson was to leave office.)
Democrats maintain that, in practice, the GOP majority has already started living by something close to the Thurmond Rule. The Senate has made only 11 new judges this year, they note, compared with 36 endorsed by a Democratic Senate in the seventh year of George W. Bush’s presidency. There are two dozen more vacancies now than when the GOP took control of the Senate in January, and also considerably more than there were in 2007.
“The process of confirming judges is about ensuring that the American people have a fully functioning judiciary,” the Judiciary panel’s top Democrat, Patrick J. Leahy of Vermont, said in a floor speech Monday. “Because of Republican obstruction, judicial vacancies have increased by more than 50 percent since they took over the majority and caseloads are piling up in courts throughout the country.”
“Regardless of how one views confirmation data, comparisons among recent presidents or the fact that the vacancy rate has not reached crisis proportion, our courts are unfortunately worse off today than they were at the start of this Congress,” American Bar Association President Paulette Brown said in a letter to Senate leaders last week urging confirmation of all the pending nominees this month.
Since the spring , the Democrats’ Exhibit A for the GOP recalcitrance has been L. Felipe Restrepo, who was first nominated in November 2014 to fill a longstanding vacancy on the backlogged Court of Appeals for the Third Circuit.
Since then Obama has not picked another person for an appellate judgeship, guaranteeing at least nine openings on the regional appeals courts at year’s end — and probably through the end of his presidency. (That’s 6 percent of the number of seats on those dozen courts.)
But the White House had reason to believe it would have success with Restrepo, who was confirmed to a federal trial judgeship in Philadelphia without controversy two years ago and whose promotion had the professed support of both Pennsylvania senators, Republican Patrick J. Toomey and Democrat Bob Casey.
It hasn’t worked out that way, and Toomey’s divided political loyalties look to be a big part of the reason.
On the one hand, his chance of winning a second term in 2016, in a state that’s been trending Democratic, is premised in part on being perceived as a bridge across the partisan chasm. And that purpose would be served if he’s seen helping elevate a former public defender who’s got strong support among Restrepo's mostly liberal fellow Latinos.
On the other hand, Toomey’s own GOP leadership, not to mention his donor base, are dominated by conservatives eager to prevent Obama from further shaping the federal bench .
Toomey waited five months before turning in the endorsement form (known as a “blue slip”) required from both a judicial nominee’s senators before the confirmation process begins. Restrepo won committee approval by voice vote in July. But only this week, after the GOP leadership agreed to confirm a judge who had been waiting for less time, did Toomey go public with his declaration that a floor vote is warranted “without delay.”
“I recognize that some of my colleagues have heartfelt concerns” about such a roll call, Toomey wrote to Majority Leader Mitch McConnell, R-Ky. “That said, I believe Judge Restrepo is an excellent, qualified nominee.”
That seemed to have worked, as leaders on Wednesday scheduled a vote on Restrepo for Jan. 11.
So the slow-walking of Restrepo will continue into early next year; conservatives may claim some measure of success at limiting Obama’s imprint on the judicial branch, but in the end the judge will get his ticket to the Third Circuit in time for Toomey to make an early election year boast of success.
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