Schumer talks about stalled judicial nominations

The nomination of Buffalo attorney Lawrence J. Vilardo for a federal judgeship should come up for a vote on the Senate floor before the end of the year, according to Sen. Charles E. Schumer.

New York’s senior senator Thursday told media in a conference call with members of the Alliance for Justice that Vilardo’s nomination will move “at a snail’s pace” with the other pending nominations, but should get a vote by the end of the year.

He said the nomination of Denise E. O’Donnell, also of Buffalo, is still pending at the White House where it is being vetted. He said there are a couple of issues not related to her, that he was not privy to discuss, but he was hopeful she will be approved by the White House.

Vilardo and O’Donnell are being considered for vacancies on the U.S. District Court for the Western District of New York which is currently without an active judge in Buffalo.

Schumer joined Alliance for Justice President Nan Aron and Kyle Barry, director of justice programs, to talk about AFJ’s newly released report, “Politics over Justice: Judicial Selection in the 114^th Congress,” which accuses Republicans of engineering “a politically motivated vacancy crisis, striving to preserve judicial vacancies for a future Republican president to fill.”

Schumer said the Republican-controlled Senate has only confirmed six judges since assuming the majority nine months ago.

“That’s appalling,” he said. “This slowdown is unprecedented.”

He noted the District Court in Western New York carries one of the busiest caseloads in the nation, more than in Washington, D.C. and Boston and would be completely at a standstill if not for two senior judges still hearing cases.

Vilardo is being considered for a seat held by Judge Richard J. Arcara who was elevated to senior status on Jan. 3.

Schumer recommended O’Donnell, director of the Bureau of Justice Assistance for the U.S. Department of Justice, to fill a vacancy created March 8 with the elevation of Judge William M. Skretny to senior status, but she has yet to be nominated by President Barack Obama. She was actually recommended before Vilardo, back in June 2014.

Schumer said throughout Obama’s seven years as president, it has been like pulling teeth to get Republicans to confirm judicial nominations and now is “about as painful as a root canal.”

He said in the meantime, the federal court system has slipped into a full-fledged emergency unlike any he has seen before. He said nominations are being approved at the slowest rate in more than 60 years.

“It’s deliberate and it has a political purpose and it’s obnoxious,” Schumer said. “Everyone knows that the pace of confirming judges slows at the end of a presidency. This slowdown is unprecedented. Republicans are bringing down the curtain on confirming judges far too early. Our system is in a crisis.”

The Republican National Committee did not immediately respond to a request for comments, but when Schumer tried to call for a vote on Vilardo’s nomination at the end of July, Senate Judiciary Committee Chairman Charles E. Grassley, an Iowa Republican, objected.

Grassley counted 16 confirmations at that point, but included 11 confirmed during the lame duck session following the 2014 midterm elections and the end of the year, when Republicans assumed the majority in the Senate. Grassley felt those 11 nominations should have been held over for the new Congress. After blocking Schumer’s call for a vote, Grassley told Schumer to “put that in your pipe and smoke it.”

Grassley took over the Judiciary Committee chairmanship in January, replacing Vermont Democrat Patrick Leahy, who had chaired the committee since 2007 and is now the ranking member.

The AFJ report says Republicans have all but abandoned their constitutional duty to confirm federal judges, despite a promise at the beginning of the year to govern responsibly.

“Republican leadership has used excuse after excuse to keep the Senate from voting on those nominated to serve in our justice system,” the report says. “This strategy is used to delay and obstruct at every stage of the judicial selection process.”

Aron said the victims of the unprecedented delays are the millions of Americans who turn to the federal courts for justice, only to have their cases delayed for months, sometimes years.

She said the problem is worse where delays have gone on so long that the vacancies have been officially declared “judicial emergencies,” which means judges have an excessive caseload, a moderate caseload where a vacancy has existed for more than 18 months or any court with more than one authorized judge and only one active judge.

The two vacancies in the Western District of New York are not considered emergencies. The court has two active judges remaining: Chief Judge Frank P. Geraci Jr. and Judge Elizabeth A. Wolford, both assigned to Rochester.

The report, available at www.afj.org, highlights prolonged delays in several states including Florida where it accuses Sen. Marco Rubio, a Republican, of not returning his “blue slip” indicating approval of nominee Mary Barzee Flores whom he joined Democratic Sen. Bill Nelson in recommending for the Southern District of Florida.

There are nine vacancies in Texas, including two on the U.S. Court of Appeals for the Fifth Circuit. All were announced more than a year ago and two more than 1,000 days ago, but none have a pending nominee.

“That’s because Republican Senators John Cornyn and Ted Cruz has intentionally slowed the process of finding new judges,” the report says. “Rather than immediately start the process for each announced vacancy, the Texas senators have ignored months and, in some cases, over a year of advance notice, refusing to ask for applications until a judge actually leaves the bench.”

The report notes that where there are vacancies without even a nominee, 92 percent are in states with at least one Republican senator.  In those situations, the report urges Obama to bypass stalling senators and nominate candidates even without home-state senator support.

In addition, according to the report:

• The Senate has confirmed only six judges in 2015, the slowest pace in more than 60 years.
• Since Jan. 1, the number of current vacancies has increased by 24, from 43 to 67.
• Two judicial nominees pending for over six months, each of whom would fill a judicial emergency, have not had a confirmation hearing.
• Thirty-five of 38 current judicial vacancies without nominees are in states with at least one Republican senator.
• All eight current circuit court vacancies without nominees are in states with at least one Republican senator.

The report also includes a series of charts and graphs, illustrating the extent to which the obstruction is unprecedented.

“It’s time the Senate majority got the message,” Aron said.  “Stop playing politics with justice.”

As of yesterday, there were a total of 67 vacancies in the federal judiciary with 29 nominees pending.

Barry said obstruction is being seen not just on the Senate floor, but in home states where senators are not working to get people nominated in a timely matter.

“I urge you to take a look at our report,” said Aron. “I think it illustrates the effort on the part of the White House and the reluctance by home state senators to speak with the White House about nominations. They have done everything they possibly can within their power to thwart the process.”

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