U.S. Magistrate Judge Patty Shwartz will have to start again on the ladder to a federal circuit judgeship, now that the Senate’s 2011-12 session has ended without a confirmation vote.
Shwartz, whose nomination was initially delayed by a recalcitrant local senator and then by political deadlock, was renominated Thursday as the reconfigured Senate took office.
That means having to undergo review again by the Senate Judiciary Committee, which passed her last March in a party-line vote.
Though the committee could waive a new hearing and proceed directly to a vote, Republicans, who voted as a block against the original nomination, could invoke a rule that provides for a second hearing at a member’s request.
The delay on Shwartz’s vote was not without warning. In June, Senate Minority Leader Mitch McConnell, R-Ky., announced there would be no consideration of any circuit court nominations in the months leading up to the election. He cited the “Thurmond Rule,” a loosely defined Senate tradition of not filling circuit court seats in the waning months of a president’s term.
Even after the election, Republicans used filibusters to block confirmations of judicial nominees during the lame-duck session. The GOP maintained that President Obama had been too slow to offer nominations and said confirmations had come at a reasonable pace.
Obama, in announcing the renomination of Shwartz and 32 other judge candidates Thursday, did not single out GOP senators but noted that many nominees “could have and should have been confirmed before the Senate adjourned.”
“Several have been awaiting a vote for more than six months, even though they all enjoy bipartisan support,” the president said in a statement.
Shwartz actually had been waiting nearly 10 months since being cleared by the committee, and 14 months since the White House originally nominated her in October 2011.
Her first hurdle was endorsement by the New Jersey senatorial contingent. Though Sen. Frank Lautenberg signed off immediately, Sen. Robert Menendez withheld his “blue slip” — the sign-off slip that allows a nomination to go forward for consideration.
Press reports surfaced in early January 2012 that Menendez was thwarting Shwartz’s nomination because of a personal vendetta against Assistant U.S. Attorney James Nobile, with whom Shwartz has had a long-term romantic relationship dating back to her days as federal prosecutor.
In 2006, Nobile had supervised an investigation into whether an antipoverty agency agreed to lease a building owned by Menendez in exchange for his promise of continued funding — an investigation some Democrats charged was politically motivated by Republican U.S. Attorney Chris Christie in an election year for Menendez.
Menendez vehemently denied the reports and said his reluctance about Shwartz instead came from doubts about her legal acumen. Menendez, a lawyer, said he had met with Shwartz in August 2011 in connection with a U.S. District Court vacancy and was dissatisfied with her responses to legal questions.
Menendez pointed specifically to her understanding of executive branch powers and her knowledge of corporations’ constitutional rights, citing the Supreme Court’s landmark 2010 ruling in Citizens United v. Federal Election Commission.
Menendez relented, and last Jan. 13, after meeting with Shwartz a second time, announced he would sign off on her nomination.
She garnered the Senate Judiciary Committee’s approval on March 8 in a 10-6 vote. All six nay votes, and two abstentions, were cast by Republicans.
During the hearing, the committee’s ranking member, Chuck Grassley, R-Iowa, had expressed concerns that — and asked Shwartz whether — she had promised Menendez anything in exchange for his endorsement during their second meeting. Shwartz denied that any such arrangement was made, discussed or requested.
At the time of her committee approval, 21 other candidates were awaiting full Senate approval.
Emily Lawrimore, spokeswoman for the Senate Republican Conference, defers comment about nominations to the Senate Judiciary Committee.
Grassley spokeswoman Beth Levine says it’s too early to tell whether Shwartz or any other nominee will be subjected to another hearing, noting that “everything’s under discussion.” There are two new Republican committee members who must be consulted, she adds.
On Thursday, Lautenberg said in a statement that Shwartz “is eminently qualified to hold a seat on the appeals court and it’s shameful that partisan politics stalled her confirmation.”
Menendez said in a statement that Shwartz “will be a tremendous addition to our federal bench. I have full confidence in Judge Shwartz’s abilities, acumen and experience and urge my Senate colleagues to consider and confirm her nomination as swiftly as possible.”
Shwartz has been a magistrate judge since 2003. Before that, she was with the U.S. Attorney’s Office in Newark as deputy chief of the Criminal Division from 1995 to 1999, chief of the Criminal Division from 1999 to 2001, executive assistant U.S. attorney from 2001 to 2002, and again Criminal Division chief from 2002 to 2003. She practiced briefly at Philadelphia’s Pepper, Hamilton & Scheetz.
A call to her chambers in Newark Thursday was not returned.