Commentary: Filling the Third Circuit judicial opening

Special to McClatchy NewspapersJanuary 18, 2013 

The Senate must immediately vote on U.S. Magistrate Judge Patty Shwartz, the experienced nominee for the Third Circuit. President Barack Obama nominated the highly qualified jurist fifteen months ago with the enthusiastic support of New Jersey GOP Governor Chris Christie. Because the opening that Shwartz would fill can delay appellate resolution and has been empty since June 2011, New Jersey Democratic Senators Frank Lautenberg and Robert Menendez, who robustly support Shwartz, must encourage the chamber to rapidly vote on her.

The Third Circuit is the tribunal of last resort for all but one percent of cases appealed from Delaware, New Jersey, Pennsylvania and the Virgin Islands. The court serves an enormous population and addresses a huge and complicated caseload, so that a single empty position can limit how it dispenses justice.

Obama swiftly acted to fill the vacancy. He sought guidance from Senators Lautenberg and Menendez, who both suggested a few prospects. Judge Shwartz has assembled a long, superb record of public service as Magistrate Judge and Assistant U.S. Attorney, functioning as the criminal division chief two times, experiences which enabled her to secure the best ABA rating - unanimously well qualified.

After Obama nominated Shwartz in October 2011, chamber review slowed because Menendez had not turned in his “blue slip,” which must occur before the Senate considers nominees. The senator expressed concern about Shwartz’s answers to some constitutional queries in his August interview of her. Menendez then interviewed Shwartz a second time and subsequently found the nominee highly qualified, promptly submitting the blue slip.

The Judiciary Committee quickly held a February 2012 hearing in which Lautenberg and Menendez expressed their support and reported Shwartz 10-6 during March with Republican Senators Lindsey Graham (S.C.) and Jon Kyl (Az.) voting present. Lautenberg and Menendez later repeated support for Judge Shwartz, asking that Republican and Democratic colleagues afford her expeditious floor action. Governor Christie in whose office Shwartz worked when he served as New Jersey U.S. Attorney also avidly backed the nominee.

On June 6, the New Jersey senators and eight GOP members provided cloture votes, which concluded a filibuster and allowed confirmation of an Arizona Ninth Circuit nominee with firm home state Republican senator support. One week later, before the chamber was able to vote on Shwartz, the GOP leadership applied the “Thurmond Rule” to oppose ballots on every Obama circuit nominee until November. President Obama’s victory and Democrats’ expanded Senate majority rendered the Thurmond Rule inapplicable.

In December, Senator Patrick Leahy (D-Vt.), the Senate Judiciary Committee chair, remarked that almost one month had passed since Obama captured reelection and GOP members were continuing to block votes on 19 judicial nominations, who should have received ballots prior to the chamber’s September recess. Leahy concomitantly requested a yes or no “vote on the longest-pending nomination” of Judge Shwartz, who has waited eight months for Senate floor consideration. Nevertheless, the Senate adjourned without voting on Shwartz whose nomination expired. Thus, on January 3, Obama renominated her, while Menendez remarked: “I have full confidence in Judge Shwartz’s abilities, acumen and experience and urge my Senate colleagues to [swiftly] confirm her.”

Because the Third Circuit requires all the court’s judges to operate efficaciously and Shwartz is an exceptional nominee, she deserves immediate committee reapproval and a Senate vote. If the GOP leadership, nonetheless, refuses to vote, Democrats must seek cloture. Lautenberg and Menendez should strongly favor cloture and urge many GOP senators to support Shwartz’s cloture and final votes. They encompass Alaska’s Lisa Murkowski, Maine’s Susan Collins, who favors a vote on an excellent First Circuit Maine nominee, Arizona’s John McCain and Jeff Flake, Oklahoma’s Jim Inhofe and Tom Coburn, who strongly support a fine Tenth Circuit Oklahoma nominee, Tennessee’s Lamar Alexander and Nebraska’s Deb Fischer.

Because the prolonged Third Circuit opening can inhibit the tribunal’s ability to deliver justice, the chamber must quickly vote on Judge Shwartz.


Carl Tobias is the Williams Chair in Law, University of Richmond.

McClatchy Newspapers did not subsidize the writing of this column; the opinions are those of the writer and do not necessarily represent the views of McClatchy Newspapers or its editors.

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