WASHINGTON — After more than 400 days, Luis Felipe Restrepo is finally getting a confirmation vote in the Senate that would make him the first Hispanic federal judge from Pennsylvania on the U.S. Court of Appeals for the 3rd Circuit.
With Monday’s vote on the federal judge from Philadelphia, the Senate will have cleared its to-do list of nominees to the powerful appeals courts. Nine vacancies will remain, but President Barack Obama has yet to nominate people for those posts. Combining both federal trial and appeals judges, 29 of Obama’s nominees — out of 72 current vacancies — await votes. The Judiciary Committee has approved 13 of them, all by routine voice votes.
Restrepo, 55, was born in Columbia and was brought to the U.S. at the age of 2. He has served as a district judge since 2013, but his elevation to the appeals court has been delayed after Sen. Pat Toomey, R-Pa., withheld his approval and GOP leaders subsequently delayed a floor vote.
The vacancy rate for the federal judiciary remains above levels experienced under Obama’s predecessor, George W. Bush, but it’s dropped below the number in Obama’s first term.
But don’t give credit to Republicans, who now control the Senate. Chalk it up to a burst of confirmations in 2014 after majority Democrats rewrote filibuster rules and rammed through 89 judges, almost double the number of the previous year and the most since President Bill Clinton’s second year in office. When 2015 opened, there were just 40 vacancies out of 852 authorized federal appeals and trial judges.
Last year, the GOP-led chamber confirmed just 11 federal judges, the least in recent memory. That has Democrats crying foul, suggesting the pace is dictated by electoral politics.
“It’s glacial,” says New York Sen. Chuck Schumer, one of the Democrats’ point men on judges. “It’s for the partisan purpose of hoping for a Republican president.”
The top Democrat on the Judiciary Committee, Sen. Patrick Leahy of Vermont, criticized Republicans in a Senate speech last month for having “the dubious distinction of matching the record for confirming the fewest annual number of judicial nominees in more than half a century.”
It is true that the number of vacancies has risen, but it is still below the situation confronting Obama in his first year in office in 2009. Vacancies spiked that year as more judges stepped down after Democrats retook the White House and as the Obama White House moved slowly on nominating replacements.
Confirmations to lifetime appointments to the federal courts have long been a flashpoint in an increasingly polarized Washington. The current situation pales in comparison with the 2014 struggle that divided the Senate over new rules to accelerate the process. Almost a decade prior, after a spate of Democratic filibusters of President George W. Bush’s judicial nominees, GOP leaders explored the same “nuclear option” to get nominees confirmed, but a bipartisan compromise diffused the fight.
When Democrats controlled the Senate, Republicans were less likely to filibuster outright, though they were often stingy in permitting votes. In December 2014, Texas Sen. Ted Cruz, now a Republican presidential contender, created an opening that Democrats exploited, allowing 11 new judges to be confirmed in an end-of-session burst just before Republicans retook control of the Senate.
Democrats note that they confirmed many more judges — 40 — in the seventh year of Bush’s presidency in 2007 than Republicans confirmed last year.
“The analogy is the last two years of the Bush administration,” Schumer said. “And we confirmed many more.”
There’s little doubt that the hardball tactics employed by Democrats in 2014 are part of the reason confirmations dropped last year. The process typically requires the Senate to agree unanimously to schedule a vote if a confirmation is to occur, and the chamber is stocked with Republicans opposed to Obama.
In the final year of Obama’s presidency, Senate leaders have agreed that four more judges will be confirmed over the next few weeks. Since more than two-thirds of the vacancies are in states with at least one GOP senator, it’s likely that at least a few more nominees will get a vote before the process virtually shuts down in an election year.
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