In the long-running judicial wars between the Senate and the White House, the first skirmish of the year is flaring into the open this week.
How it plays out will offer insight about whether the new Republican majority plans to continue making the federal bench a venue for venting displeasure with President Barack Obama, or whether he’ll be allowed to refashion the courts a bit more during his final two years in office. The locus of the new fight is L. Felipe Restrepo, chosen by the president six months ago for the U.S. Court of Appeals for the Third Circuit. He’s the only person Obama has picked for eight current vacancies on the regional appeals courts. The seat has been open for 18 months, and as a result, the caseload recently became so backlogged that the Administrative Office of the U.S. Courts declared a “judicial emergency” for appeals out of Pennsylvania, New Jersey and Delaware.
But the Senate Judiciary Committee is convening its third hearing of the year Wednesday afternoon to hear from judicial nominees, and Restrepo is not invited. His supporters say efforts to spur his progress behind the scenes have been frustrated at every turn.
“This is just slow-walking a totally qualified nominee,” said Kyle C. Barry of the Alliance for Justice, which advocates for a more liberal judiciary. “There’s no substantive reason, and it’s unconscionable.”
Progressive advocacy groups and some Senate Democrats suspect Restrepo is being held hostage by the GOP as the latest act of retribution for Obama’s executive action on immigration last fall, which sought to grant an indefinite reprieve from deportation to millions of people in the country illegally.
The initial Republican approach — withholding funding from the Department of Homeland Security unless the president reversed course — ended up as a high-profile collapse this winter, and the Senate GOP’s fallback effort to deny Loretta Lynch's confirmation as attorney general after she said she would support Obama’s policy has come to naught this spring. Now, some on the right are suggesting the best possible Plan C is preventing new judges on the appeals courts
“There is little risk of the public outrage that might accompany a DHS shutdown or even a fight over a Cabinet nominee,” Curt Levey of the conservative Committee for Justice legal think tank wrote in the Wall Street Journal in March.
“Nonetheless, denying Mr. Obama the power to shape these all-important circuit courts would give Republicans nearly as much leverage as a broader approach,” he continued. “If Republican senators stick together, this is a no-lose strategy. Either the president relents by rescinding or substantially modifying his immigration orders, or Republicans halt his leftward transformation of the circuit courts and keep judicial vacancies open for a possible GOP president in 2017.”
The staff for Judiciary Chairman Charles E. Grassley said the Iowa Republican is not embracing this approach. Instead, they say the committee is still reviewing the latest background check — something of a curiosity, given that only two years ago the FBI conducted a thorough review of the 56-year-old Restrepo’s life before he was confirmed (on a voice vote) for his current job as a federal trial court judge in Philadelphia.
“You can see by the numbers that there is no strategy,” spokeswoman Beth Levine said, offering statistics suggesting the GOP timetable on judges at this point in Obama’s presidency is comparable to the Democrats’ pace during President George W. Bush’s seventh year in office.
Adding to the mystery behind the Restrepo delay is the fact that one of the judge’s most important public supporters, Republican Patrick J. Toomey, has not returned the endorsement form (known as a “blue slip”) the committee requires from each home-state senator before a judicial confirmation process begins. He and Pennsylvania’s other senator, Democrat Bob Casey, jointly recommended Restrepo for the lower court, and last fall Toomey declared “he will also make a superb addition to the Third Circuit."
Toomey’s office declined to discuss the missing blue slip, but spokeswoman E.R. Anderson said Toomey still supports confirmation “and hopes it gets done this year.”
The senator is at a politically difficult moment in his career. A favorite of free-market and social conservatives, he will stand for a second term in a presidential year in a state that’s voted Democratic for president in six straight elections. So far, at least, Toomey has done little to shift his agenda or his voting record toward the middle ahead of 2016.
Professing his support in public for a prominent home-state figure — while withholding his formal endorsement behind the scenes for a time as a gesture of solidarity with fellow conservatives — would count as only the slightest feint to the middle.
A native of Colombia who came to the United States as a toddler and became a citizen in 1993, Restrepo would be the second Latino ever on the Third Circuit. But he would be the first judge on that court who’s been a public defender, having done that work in state and federal court for six years after law school.
He then spent 13 years in private practice, focused on civil rights and criminal defense, before becoming a federal magistrate in 2006, where he ran a program that assisted federal convicts newly released from prison to finish high school, clear up bad credit and find employment.
Restrepo might still end up as a symbol of the immigrant success story and a reminder that the poor oftentimes benefit from good court-appointed lawyers. Or he could become the latest high-profile victim of partisan brinkmanship in the shaping of the judicial branch. This early in the year, it’s still too early to predict.
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