The four district court nominees slated for the federal bench in Philadelphia are the most recent in a flood that have been moving increasingly quickly through the Senate.
President Obama nominated four lawyers from eastern Pennsylvania firms June 16—Wendy Beetlestone, Mark Kearney, Joseph Leeson and Gerald Pappert—to fill four of the five empty seats in the Eastern District of Pennsylvania.
Their nominations have come at the midpoint between two potential catalysts for rapid movement through the Senate for judicial nominees—the midterm elections, which are coming up in November and could turn over control of the Senate to Republicans, and the controversial rules change last November, commonly called the nuclear option, made by the current Democratic majority, which allows for a simple majority of 51 votes to confirm the president’s nominees. Before the nuclear option went into effect, a filibuster required a 60-vote majority.
This batch of four nominees, which was announced with a nominee for the District of Connecticut, could have a hearing as early as July and could then be on the floor for a vote by September, said Carl Tobias, a professor at the University of Richmond School of Law who tracks judicial nominees.
“But, I wouldn’t hold my breath,” he said.
So far this year, the Senate has confirmed 47 judges, which is about the same number as it confirmed in the entire year in both 2012 and 2013, during which it confirmed 48 and 43 judges, respectively, according to Russell Wheeler, a fellow at the Brookings Institution.
Wheeler downplayed the significance of the nuclear option in the Senate’s change of pace for confirmations, instead pinning it to the upcoming midterm election. It’s really a desire of the current majority wanting to get as many of Obama’s nominees through in anticipation of a possible GOP takeover, he said.
This midterm election differs from the last one, which wasn’t preceded by a push of confirmations, since people didn’t think the Republicans could take the Senate last time around, Wheeler said.
While last November’s rule change certainly facilitated the confirmation of nominees to the U.S. Court of Appeals for the D.C. Circuit—the filibuster of their nominations had actually prompted the rules change itself—along with a few others, beyond that it didn’t have much of an effect on the movement of nominees through the Senate to confirmation, Wheeler said.
Arthur Hellman, a professor at the University of Pittsburgh School of Law, however, saw that the gutting of the filibuster in favor of a simple majority was the reason for the pace.
The nuclear option changed the landscape, Hellman said.
“The dynamics are completely different” now, he said, explaining that when something as significant as changing the 60-vote threshold is changed, it changes the game since interest groups that might have once put money into fighting a nominee might lose interest and some senators who might have voted against a nominee might change their minds in the face of an, essentially, impossible fight.
Hellman also cited the midterm elections as putting pressure on the White House to move its nominees through while it has a majority in the Senate, saying of Obama before the midterms, “He has a window now that is going to close soon.”
Sarah Binder, also a fellow at the Brookings Institution, also emphasized the difference in the effect of the nuclear option on circuit court nominees versus district court nominees.
The average rate of confirmation for circuit court nominees before the nuclear option was about 50 percent, she said, and since the rules change it has been about 80 percent.
“So, clearly, it had an effect there,” she said.
Typically, circuit court nominations are more closely scrutinized than district court nominations.
The last time that the average rate for circuit court confirmations was at 80 percent was at the beginning of the Clinton administration, Binder said, when former President Bill Clinton had a Democratic Congress.
For the district court nominees, it’s harder to know if the rules change made a difference, she said. A number of other factors could also be at work—the nominees could be better qualified, more moderate, or some might have been chosen by Republican home-state senators, Binder suggested.
She also saw the coming midterm elections as a source of pressure on Democrats to push Obama’s nominees through the Senate and onto the bench.
The four nominees just made for the Eastern District come from various legal backgrounds, but each is coming straight from practice.
Beetlestone practices complex commercial litigation at Hangley Aronchick Segal Pudlin & Schiller in both federal and state courts.
“We are tremendously proud of Wendy and Ashely for both of these impressive accomplishments,” said Mark Aronchick, chair of Hangley Aronchick, in a prepared statement. Ashely Chan, co-chair of the bankruptcy practice, was nominated this month to the federal bankruptcy court bench in Philadelphia.
“Despite the relatively small size of our firm we have been lucky to be able to consistently attract extraordinarily qualified and skilled attorneys who strive to make a meaningful impact on our legal community. Both will be missed at the firm, but we look forward to remaining in touch and following their successful careers,” Aronchick said.
Kearney is a managing shareholder at Elliott Greenleaf & Siedzikowski in Blue Bell, Pa., where he has focused on complex commercial litigation in front of both federal and state courts.
“We have always been proud of Mark A. Kearney’s leadership in the legal profession and in the community. His work ethic, sense of fairness, and dedication to the law will enhance the distinguished bench of the U.S. District Court for the Eastern District of Pennsylvania,” said John M. Elliott, chairman and CEO of Elliott Greenleaf, in a prepared statement.
Leeson is a partner at Leeson, Leeson & Leeson in Bethlehem, Pa., where he has practiced civil litigation. He is also an arbitrator for the American Arbitration Association.
Pappert is a partner at Cozen O’Connor and is the chair of the Pennsylvania Banking and Securities Commission. Immediately prior to joining Cozen O’Connor, Pappert had served as general counsel of pharmaceutical company Cephalon Inc. before its sale to Teva Pharmaceutical Industries. Pappert also served as the attorney general of Pennsylvania from 2003 to 2005.
In March, the Senate confirmed two new judges to the Eastern District, Gerald A. McHugh Jr. and Edward Smith, each of whom were nominated in August 2013.
Obama’s most recent nominees for the Eastern District were announced along with one other nominee, Victor Allen Bolden for the District of Connecticut.