Two nominees for the Eastern District of Pennsylvania were confirmed by the Senate on Wednesday, leaving five empty seats on the bench.
Both were confirmed with an unexpectedly close vote.
Gerald A. McHugh Jr. was confirmed with 59 votes in his favor and 41 votes against. Edward Smith was confirmed with 69 votes in his favor, 31 votes against.
The two other judges confirmed by the Senate on Wednesday—Christopher Reid Cooper for the District of Columbia and M. Douglas Harpool for the Western District of Missouri—were confirmed with votes of 100-0 and 93-5, respectively. The counts for Cooper and Harpool are very typical of how the Senate has been voting on district court nominees recently, said Carl Tobias, a professor at the University of Richmond School of Law who tracks judicial vacancies.
“Maybe this is a product of them switching off,” he said, referring to the unofficial system by which Pennsylvania senators divvy up judicial nominations. Longtime Pennsylvania Sen. 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 when the state’s senators are from different parties.
McHugh, a plaintiffs lawyer who is a partner at Raynes McCarty, is seen as a pick from Democratic Sen. Bob Casey and Smith, a judge on the Court of Common Pleas in Northampton County, is seen as a pick from Republican Sen. Pat Toomey.
It’s unusual for a nominee to be opposed in the Senate by members of the president’s party, said Glenn Sugameli, an attorney at the Defenders of Wildlife who tracks judicial vacancies. Nominees are presented to the Senate by the White House, which typically takes strongly into consideration the recommendations for nominees from the home-state senators.
Smith’s relatively close confirmation is particularly “unusual in the nature of the opposition,” Sugameli said. Even though Smith is a Republican, the 30 votes against him from Democrats were unusual because he was nominated by a Democratic White House, Sugameli said.
Sen. Jeanne Shaheen, a Democrat from New Hampshire, was among those who voted against Smith and she was the only Democrat to vote against invoking cloture for him, and did so because she “had concerns about what Judge Smith’s record on reproductive rights meant about his interpretation of the constitutional right to privacy. She thought the Senate should have had more time to continue debate on his nomination,” according to Elizabeth Kenigsberg, spokeswoman for Shaheen.
Sugameli said the lack of debate was unusual considering the proportion of “no” votes recorded.
It’s “kind of strange to have no debate on either side, then a bunch of people voting no.”