Pa.'s Empty Federal Bench Beyond Help From 'Nuclear Option'

, The Legal Intelligencer



A dozen vacancies stretch across the federal bench in Pennsylvania, but the "nuclear option" won't likely help put judges in those seats.

The move by Senate Democrats last month to outmaneuver Republican filibustering of President Obama's nominees to the U.S. Court of Appeals for the D.C. Circuit by implementing the so-called nuclear option, which allows the Senate to confirm nominees with a simple majority vote, will probably help fill the bench that prompted it—Patricia Millett was confirmed this week to the D.C. Circuit after a roughly six-month wait. But it won't do much for vacancies that don't have nominees already in the pipeline.

Neither of the two open seats on the Third Circuit have a nominee—both have been open since the summer—and only two of the 10 district court vacancies have nominees.

Even if the road to confirmation has been smoothed by the nuclear option, "what difference does it make if you don't have nominees?" asked Carl Tobias, a professor at the University of Richmond School of Law who tracks vacancies on the federal bench.

The two nominees to the Eastern District of Pennsylvania, Gerald McHugh Jr. and Edward Smith, are on the agenda for the executive business meeting of the Senate Judiciary Committee today, which could put them on the floor for a vote by the full Senate in January, Tobias said.

The five other seats that are open in the Eastern District have no nominees and the three seats that are open in the Western District of Pennsylvania have none either.

The nominating commission for the Eastern District that was set up to filter out candidates and make recommendations for who should fill federal judgeships by Pennsylvania's senators—Democrat Robert P. Casey Jr. and Republican Pat Toomey—finished interviewing people in April and sent along recommended names soon after, said John Soroko, chairman and chief executive officer of Duane Morris, who is a co-chair of the commission.

Although not all five of the vacancies were open in April, the committee approached the process with the understanding that the number of open seats would expand over time, Soroko said, and sent a list of names from which the senators could pick five to submit to the White House. He said he expects that the final nominations will come soon.

Although John Rizzo, spokesman for Casey, declined to say if the senators had passed their recommendations for the seats to the White House, he did explain that it can be a lengthy process.

It typically takes three months for a candidate to go through the White House vetting process, American Bar Association evaluation, and FBI background check, Tobias said.

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