The flood of judicial nominations that has come from the White House in recent months, including the three just made for the Eastern District of Pennsylvania, could forecast a change in the focus of President Obama’s second term — his first having been notable for its dearth of judicial confirmations.
The Eastern District nominations address only half of the shortfall in commissioned judges in the district and observers of federal judicial selection could not say how fast confirmation from the U.S. Senate could be.
Thursday could bring an indication about the pace of confirmations in the upcoming session of the U.S. Senate, as the Judiciary Committee is scheduled to have an executive business meeting during which some nominees could be discussed.
But since Obama sent the Eastern District nominations to the Senate on Tuesday, they likely won’t be considered by the committee until the next session, which begins on January 3.
The three remaining vacancies, which sprang up over the course of the last year, are still open, and J. Curtis Joyner, chief judge of the Eastern District, expects another two or three seats to open next year as more judges become eligible to take senior status.
On the recommendation of Pennsylvania’s senators, Obama nominated Philadelphia Court of Common Pleas Judge Nitza Quinones Alejandro, U.S. Magistrate Judge Luis Felipe Restrepo and Berks County Court of Common Pleas Judge Jeffrey Schmehl.
“Nothing’s done till it’s done,” Joyner said, stressing that the court still has six vacant seats until the nominees are confirmed. And, he said of the nominations, “It’s been a long time coming.”
One of the judgeships has been open for three-and-a-half years and another for two-and-a-half years.
Two seats that sat open for roughly as long in the Middle District got nominations in May, but neither has yet been confirmed.
According to a report issued last week by the Alliance for Justice, a progressive advocacy group in Washington, D.C., the U.S. Senate has confirmed a lower percentage of Obama’s nominees than it did for either George W. Bush or Bill Clinton.
“This discrepancy is largely due to the comparatively harsh treatment of the president’s district court nominees,” according to the report, titled “The State of the Judiciary — Unfinished Business: Judicial Selection During the Remainder of the Obama Presidency.”
“This new and dangerous escalation in the judicial confirmation battles largely stems from Republican senators’ willingness to extend tactics and scrutiny previously reserved for circuit court nominees to district court nominees,” the report says.
Russell Wheeler, who tracks the judicial nomination process at the Brookings Institution, made a similar observation.
Over the last couple of administrations, circuit court nominees have been harder to get through the Senate than district court nominees, but, recently, whatever pervaded the circuit judge process has metastasized in the district court process, Wheeler said.
Another point to consider, Wheeler said, is that early in his first term, Obama wasn’t focused on nominations, but rather on the economy and his health care law. The number of nominations Obama has made since the political conventions this summer, which far outpaces those made by his predecessors during the same period in their terms, could signal that he’s gearing up for a more vigorous confirmation schedule at the start of his second term, Wheeler said.
Regarding the increasingly lengthy confirmation process, Wheeler said that the average number of days that Clinton nominees waited, from their nomination to their confirmation, was 93 days; for Bush’s nominees, it was 154; and for Obama, it has been 221 days. In a similar vein, the number of days that a seat has sat open, from the date it is announced to the date that it is filled, was 254 under Clinton, 265 under Bush and 387 under Obama.
The process for making recommendations to the White House began at about this time last year, when there were three empty seats on the Eastern District bench, said John Soroko of Duane Morris, who is co-chair of an advisory panel set up by U.S. Senators Robert Casey, a Democrat, and Pat Toomey, a Republican. Soroko was Toomey’s pick.
The panel started with 60 applicants and whittled it down after holding interviews, Soroko said.
“I anticipate us moving with dispatch,” Soroko said of launching the process to fill the next three seats. He expects that it will start “sooner rather than later,” he said, beginning with soliciting interest through advertising.
Rob Ross of Ross Feller Casey is the other co-chair, named by Casey. He also said that it is in “everybody’s interest” to get the seats filled, although he was unsure of when the process might start.
Longtime Pennsylvania Senator Arlen Specter established a system for recommending nominees to the White House whereby the president’s party would get two out of three available nominations.
“Arlen Specter is the reason this court is as good as it is,” U.S. District Senior Judge Berle Schiller of the Eastern District of Pennsylvania recently said. As chairman of the judiciary committee, Specter made sure there were no ideologues put on the bench, Schiller said. Specter, who was in the Senate until 2010, died last month at the age of 82.
Restrepo, who has been a magistrate judge in the Eastern District for six years, was a named partner in the firm of Krasner & Restrepo. He had begun his career as a defender, first with the Defender Association of Philadelphia and then as an assistant federal defender in the Eastern District.
Joyner called Restrepo an “exceptional person,” saying that he’d make an excellent district court judge.
Quinones Alejandro has been on the bench of the Philadelphia Court of Common Pleas for more than 20 years and, before that, was a staff attorney for the U.S. Department of Veterans Affairs.
“She’s a very steady, level-headed judge,” said Pamela Pryor Dembe, president judge of the Philadelphia Court of Common Pleas, who shared chambers with Quinones Alejandro years ago. “Lawyers like trying cases in front of her,” Dembe said.
Schmehl, who became the president judge of the Berks County Court of Common Pleas in 2008 after having served on the bench for a decade, was a partner in the firm of Rhoda Stoudt & Bradley and served as the county solicitor for years.
“He’s a very practical, hands-on person,” said Heidi Masano of Masano Bradley, who was an assistant county solicitor under Schmehl and served on the advisory panel. Of his character, she said, he’s “beyond reproach.”