News Law and Policy

Obama Nominates Three New Federal Court Judges, Including First Openly Gay Latina

Jessica Mason Pieklo

President Obama made another move to address critical judicial vacancies with three new nominees in Pennsylvania.

President Obama made another strong showing in support of his stated goals to diversify the federal bench and fill critical vacancies with three new nominations, including Judge Nitza I. Quiñones Alejandro, the first openly gay Latina federal judge.

Quiñones is a native of Puerto Rico and if confirmed by the Senate, would be the first openly gay Latina to serve in the federal judiciary. She earned her law degree in 1975 from the University of Puerto Rico School of Law. After graduation she relocated to Philadelphia to work as a staff attorney for Community Legal Services, Inc. a legal aid organization dedicated to providing low-income people with an array of affordable legal services. In May 1990, Pennsylvania Governor Robert Casey nominated Judge Quiñones Alejandro for a judicial appointment but that process did not go smoothly. The Senate hesitated in its confirmation, and on November 5, 1991, Judge Quiñones Alejandro was instead elected the first Hispanic female judge of the Court of Common Pleas for the First Judicial District of Pennsylvania.

According to the Human Rights Campaign, Quiñones is the eighth openly gay life-tenured federal judicial nominee named by President Obama. Prior to Obama’s election, only one openly gay judge, Deborah Batts, a President Clinton appointee, had been nominated and confirmed by the Senate.

President Obama also nominated Judge Luis Felipe Restrepo and Judge Jeffrey L. Schmehl for the federal bench. Judge Restrepo has served as a United States Magistrate Judge in the Eastern District of Pennsylvania since 2006. Prior to taking the bench, Judge Restrepo was a named partner at the law firm of Krasner & Restrepo from 1993 to 2006 in addition to serving as an Assistant Federal Defender in the Eastern District of Pennsylvania from 1990 to 1993 and as an Assistant Defender with the Defender Association of Philadelphia from 1987 to 1990. Judge Restrepo began his legal career as a law clerk at the National Prison Project.  He received his J.D. in 1986 from Tulane Law School and his B.A. in 1981 from the University of Pennsylvania.

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Judge Jeffrey L. Schmehl has served as President Judge of the Berks County Court of Common Pleas in Pennsylvania since 2008, having joined the court as a judge in 1998.  Previously, Judge Schmehl was in private practice and for much of that time also served as the Berks County Solicitor. Judge Schmehl also served as an Assistant District Attorney in Berks County from 1981 until 1986 and as an Assistant Public Defender.  He received his J.D. in 1980 from the University of Toledo School of Law and his B.A. in 1977 from Dickinson College.

“These men and women have had distinguished legal careers and I am honored to ask them to continue their work as judges on the federal bench,” said President Obama.  “They will serve the American people with integrity and an unwavering commitment to justice.”

All three will need to be confirmed by the Senate. There are currently eight vacancies in the federal courts in Pennsylvania with two prior nominees for seats considered “judicial emergencies” waiting for over four months for a confirmation vote from the Senate. There is no good faith reason why those judges, or any of the presidents remaining nominees, should wait any longer.

News Law and Policy

Obama Nominates Merrick Garland for Supreme Court Amid Major Abortion Rights Case

Jessica Mason Pieklo

Garland would be the third former prosecutor on the bench, alongside Justices Sonia Sotomayor and Samuel Alito.

Read more of our articles on Justice Antonin Scalia’s potential successor here.

President Obama on Wednesday nominated D.C. Circuit Court of Appeals Chief Judge Merrick B. Garland to replace the late Justice Antonin Scalia on the Supreme Court.

The announcement comes as Senate Republicans insist they will not consider a replacement for Scalia until after the presidential election in November.

Garland, 63, was first appointed to the United States Court of Appeals in April 1997 and became chief judge of the circuit in February 2013. Garland is a graduate of both Harvard College and Harvard Law School.

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Following graduation, he served as law clerk to Judge Henry J. Friendly of the U.S. Court of Appeals for the Second Circuit and to U.S. Supreme Court Justice William J. Brennan, Jr. Garland then became the special assistant to then-Attorney General Janet Reno. Following a short time in private practice, Garland returned to the public sector, serving as an assistant U.S. attorney for the District of Columbia from 1989 to 1992, and as deputy assistant attorney general in the Criminal Division of the U.S. Department of Justice during the Clinton administration.

Garland has a reputation as a moderate, though conservatives are likely to attack Garland on his record on gun rights. Garland, while on the D.C. Circuit, voted to overturn a panel decision striking D.C.’s ban on handguns. That case would eventually find its way to the Supreme Court, where the conservative majority in D.C. v. Heller would find the ban unconstitutional in an opinion authored by the late Justice Scalia.

Garland’s record on reproductive rights is less clear, as is his record on civil rights cases. SCOTUSblog reports that when Garland was called to rule in civil rights cases, he generally sided with plaintiffs alleging rights violations. Garland served in the Justice Department during the initial implementation of the Freedom of Access to Clinic Entrances (FACE) Act. President Clinton nominated him to the D.C. Court of Appeals soon after.

NARAL Pro-Choice America President Ilyse Hogue in a statement criticized GOP senators for refusing to hold hearings for any Obama nominee, as the Roberts Court considers reproductive rights cases that will have a lasting impact on abortion access throughout the country.

“This year, monumental cases will be decided by the Court on abortion access specifically and reproductive rights generally,” Hogue said. “Judge Garland does not have a public record on reproductive rights and Senate Republicans’ obstruction denies all of us our right to know where this nominee stands on core constitutional questions of women’s privacy, dignity, and equality. With seven in ten Americans supporting legal access to abortion, we have a right to know where our justices stand on this important issue. It’s time for Republicans to stop putting their party’s interests ahead of our nation’s.”

Garland served with Chief Justice John Roberts on the D.C. Circuit Court of Appeals and the two are said to be friends, a fact that could be designed to move conservatives on his nomination.

Senate Majority Leader Mitch McConnell (R-KY) said of the nomination in his Senate floor speech: “It seems clear that President Obama made this nomination not with the intent of seeing the nominee confirmed, but in order to politicize it for the purposes of the election.”

“What the president has done with this nomination would be unfair to any nominee,” McConnell continued. Instead of spending more time debating an issue where we can’t agree, let’s keep working to address the issues where we can, he said, closing with a plea to let the American people decide who the next nominee should be.

Seven current Republican senators voted in favor of confirming Garland to the United States Court of Appeals in 1997, as reported in the Washington Post. Those senators include Susan Collins (R-ME), Orrin Hatch (R-UT), James Inhofe (R-OK), John McCain (R-AZ), Dan Coats (R-IN), Thad Cochran (R-MS), and Pat Roberts (R-KS).

“As president, it is both my constitutional duty to nominate a justice and one of the most important decisions that I—or any president—will make,” Obama said in an email to supporters Wednesday morning in advance of the nomination announcement. “In putting forward a nominee today, I am fulfilling my constitutional duty. I’m doing my job. I hope that our senators will do their jobs, and move quickly to consider my nominee.”

Analysis Abortion

‘Obstruction on Steroids’: Republicans Use Scalia’s Death to Try and Shut Down the Supreme Court

Jessica Mason Pieklo

Congressional Republicans’ promise to not even consider a replacement nominee until after the 2016 presidential election has highlighted a disturbing trend in American politics.

Read more of our articles on Justice Antonin Scalia’s potential successor here.

In the days following Supreme Court Justice Antonin Scalia’s death, congressional Republicans’ promise to not even consider a replacement nominee until after the 2016 presidential election has highlighted a disturbing trend in American politics. Although Republicans have blocked President Obama’s political agenda since the moment he took the oath of office, nowhere has this obstruction been more egregious than the federal judiciary.

While the chest-thumping from Republicans over a replacement for Justice Scalia has gathered the most press attention, the reality is our entire federal judiciary is in crisis thanks to Republican obstructionist tactics. Since President Obama took office, Republicans on the judiciary committee have consistently dragged out the confirmation process for or rejected outright his nominations.

The immediate result has been to slow down the federal courts to the point of crisis.

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There are currently 75 vacancies on the lower courts. Thirty-one of those vacancies are considered to be “judicial emergencies,” which means there are not simply enough judges on those courts to hear the number of cases being filed.

The number of judicial emergencies, for that matter, has increased by 158 percent since January 2015. There are also seven known future vacancies where judges have given their notice they will step down. Not surprisingly, most of these vacancies are clustered in conservative judicial districts, where an Obama appointment could potentially moderate the bench.

“In a number of situations we have very qualified nominees for circuit court judgeships, many are historic nominees,” explained Marge Baker, executive vice president of the progressive advocacy organization People for the American Way, in an interview with Rewire. “In Alabama we have what would be the first African American from Alabama to sit on the Eleventh Circuit. That would be huge. In Indiana it would be the first African-American woman from Indiana to sit on the Seventh Circuit. These are historic nominations of eminently qualified people and there’s absolutely no reason why they shouldn’t be filled.”

Compare this situation with that of the final two years of George W. Bush’s presidency, when Democrats took over the Senate after the 2006 midterm elections. In 2007, the Democratic Senate confirmed 40 of President Bush’s circuit and district court nominees. That was just in the Democrats’ first year as the majority. By the end of 2008, the Democratic-controlled Senate had confirmed a total of 68 judicial nominees.

By contrast, the newly Republican-controlled Senate confirmed 11 judges in 2015.

“This is Republican senators in this country saying they are not going to do their job, and it’s a job the Constitution requires them to do,” Baker said. “It’s an explosion of obstruction that we are seeing.”

And it’s an explosion of obstruction that is only getting amplified by the electoral cycle. In January 2016, the conservative pressure group Heritage Action threatened legislators with bad legislative scorecards, should they vote to confirm any more of the president’s judicial nominees.

For those nominees that do eventually get a vote, the confirmation process has been inexplicably delayed, with many nominees waiting more than 100 days for a confirmation vote. In almost every case, the nominee had strong bipartisan support and no opposition. Republicans just refused to act.

If the effect of Republican obstruction has been to bring the lower courts to a near standstill, their current strategy of blocking any Supreme Court nominee until after the election could bring the country’s highest court to a full stop. Consider it another form of government shutdown by the GOP.

“If the Republicans succeed in what they want to do, they are going to be leaving the Court without a ninth justice for at least a year and a half, or close to two terms of its work,” Baker said.

“It leaves you speechless, in terms of how do you deal with this level of disregard for the constitutional duty these senators were elected to perform?” she asked.

“On the one hand, this is part and parcel of the general obstruction the president has hit since the moment he took office,” Baker said. “What’s different and even more extreme [with the Supreme Court nomination] is there is no precedent for the party in the majority saying that they will not consider any nominee for the Supreme Court because it is the last year of the president’s term.”

“It is beyond the same-old thing. It is a crisis of constitutional proportions,” Baker continued.

So far, President Obama has shown little signs he’s going to play along with Republicans and hold a nomination back. And recent polling suggests the American public is also growing tired of the political posturing by conservatives around a replacement for Justice Scalia. The question for congressional Republicans, though, is do they care?

“There isn’t anything more sacred than what the Senate needs to do with regard to judicial nominations,” said Baker.

“This is obstruction on steroids.”

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