Nominees to federal courts in Philadelphia have been moving through the Senate Judiciary Committee this week.
Patty Shwartz, nominated to the U.S. Court of Appeals for the Third Circuit, was OK’d by the committee Thursday and the three nominees to the U.S. District Court for the Eastern District of Pennsylvania had their hearing Wednesday.
Senator Mazie Hirono, D-Hawaii, opened the hearing, which also included two nominees to district courts outside of the Third Circuit, by highlighting the woeful state of the federal bench. Across the circuit and district courts, she said, there are currently 90 vacancies, which is 50 more than what existed at the same point in George W. Bush’s presidency.
The Legal monitored the hearing over the Senate’s official video feed.
The federal judiciary is in the midst of the longest period of historically high vacancy rates in more than 35 years, according to the Congressional Research Service, she said.
Hirono called it "a crisis situation."
Federal judges have to give priority to criminal over civil cases and criminal cases have increased 70 percent over the last decade, she said.
"Judges are forced to delay the civil cases, often, for years," Hirono said, calling for the Senate’s speedy conformation of the nominees.
Senator Mike Lee, R-Utah, responded that "54 out of the 90 judicial vacancies in the United States are not moving forward precisely because we have no nominees," he said.
"So, we are moving forward, I think, pretty expeditiously on those nominees that we have," Lee said. "But we can’t move forward where we don’t have nominees."
The pair peppered the nominees with a variety of questions during a low-key session. The three nominees to the Eastern District of Pennsylvania are Philadelphia Court of Common Pleas Judge Nitza Quiñones Alejandro, U.S. Magistrate Judge Luis Felipe Restrepo and Berks County Court of Common Pleas Judge Jeffrey Schmehl — they were named in late November.
Each senator asked Alejandro, who is Latina, about diversity.
Hirono said that diversity is important in the judiciary as it is in the Senate and asked what Alejandro had done to increase diversity in the Pennsylvania bar.
Alejandro helped to create the Hispanic bar in Philadelphia in the early 1980s and has maintained a diverse staff, she said.
After noting that Alejandro had been on a panel during the Philadelphia Bar Association’s annual bench-bar conference titled "Wake Up Everybody: Race and the Law" in 2008, Lee asked whether the gender or ethnic background of a judge does, or should, influence the outcome of a case.
"It should not have any bearing whatsoever on deciding the case," she answered. Judges "decide the case on the facts before you, and the law, and the precedents that have been established," Alejandro said.
He asked Schmehl about the judge’s ability to adapt his considerable experience in state court to the federal bench.
"I’ve been in a courtroom almost my whole life — as a prosecutor, a trial attorney and a trial judge," he said, and his familiarity with Pennsylvania’s rules of evidence could easily transfer to federal rules.
Similarly, with sentencing guidelines, the state and federal systems are built on the "same concept," Schmehl said.
Largely, though, Schmehl said, "I feel that I’m a quick learner and I will be able to get up to speed and make this transition smoothly."
Addressing Restrepo, Lee asked about a column he had written while he was a partner at the Philadelphia law firm of Krasner & Restrepo in TheNational Law Journal in 1993 headlined "False Logic Misdirects the U.S. War on Drugs." The NLJ is an affiliate of TheLegal.
In the penultimate paragraph, Restrepo had written, "We must demilitarize our approach to the drug problem, emphasizing social, economic, educational and family policies, targeting groups ignored during the Reagan/Bush years."
"What were the groups who were ignored during the Reagan and Bush years?" Lee asked.
The gist of the piece was to advocate for a different approach to the War on Drugs, Restrepo said, noting that he wrote it 20 years ago. He had suggested a focus on the demand side, rather than just the supply side, he said, explaining that he had thought that the causes of the demand should be examined. It was premised on "the theory that supply doesn’t create its own demand," Restrepo said.
"Federal law recognizes that there are both components, but the way federal law is enforced doesn’t always reflect that," Lee said. "So, that’s a fair point."
Senators will have a week to submit further questions to the nominees, but Carl Tobias, a professor at the University of Richmond School of Law who follows the confirmation process closely, said he doesn’t expect there will be any and guessed that the committee vote will come within the next three weeks.
The Senate Judiciary Committee approved Shwartz, a magistrate judge in the District of New Jersey who was nominated to the Third Circuit in October 2011 to fill the seat left open in June 2011 when Third Circuit Judge Maryanne Trump Barry took senior status.
Shwartz made it through on an 11-7 vote. Her nomination was considered along with a slate of nine district judge nominees and one other circuit nominee.
Currently, there are six vacancies on the bench in the Eastern District. The three that don’t have nominations opened over the course of the last year and the process for Pennsylvania’s senators to make recommendations to the White House on nominees, which takes about a year, is starting to get under way. With Chief Judge J. Curtis Joyner planning to take senior status in the spring, there will be another open seat on the bench.