U.S. courts in state still await nominees for judges

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A dozen vacancies stretch across the federal bench in Pennsylvania, but the "nuclear option" is not likely to help put judges in those seats.

U.S. Senate Democrats last month sought to outmaneuver Republican filibustering of President Barack 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.

That move probably will help fill the bench that prompted the showdown in the first place --Patricia Millett was confirmed last week to the D.C. Circuit after a wait of roughly six months.

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 has a nominee -- both have been open since the summer -- and just 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, were on the agenda for the executive business meeting of the Senate Judiciary Committee last week, which could put them on the floor for a vote by the full Senate in January, Mr. Tobias said.

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

The committee that is making recommendations for the three vacancies in the Western District of Pennsylvania finished interviewing candidates this fall and anticipates sending a list of names soon to Pennsylvania's senators, Democrat Robert P. Casey Jr. and Republican Pat Toomey , said Laura Ellsworth, a partner at Jones Day in Pittsburgh, who co-chairs the committee.

The nominating commission for the Eastern District finished interviewing people in April and sent along recommended names to the senators soon after, said John Soroko, chairman and chief executive officer of Duane Morris, who is a co-chair of the commission.

Although not all Eastern District vacancies were there in April, the committee approached the process with the understanding that the number of open seats would expand over time, Mr. 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.

John Rizzo, spokesman for Mr. Casey, declined to say if the senators had passed their recommendations for the seats to the White House, and said the process can be lengthy.

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

With 94 vacancies across the country, 42 of which have no nominees, the White House may well part of the reason behind the bottleneck, Mr. Tobias said. As an example, he said that Virginia's senators submitted a name for a vacancy in the Eastern District of Virginia five months ago and nothing has come from the White House yet.

The only state that appears to be in worse shape than Pennsylvania with its judgeships is Texas, which is in the Fifth Circuit.

Texas' senators, Republicans John Cornyn and Ted Cruz. "are just waiting for 2014," Mr. Tobias said, adding they'll keep stalling with the hope that the GOP will win a majority in the Senate before making nominations for nine vacancies.

Saranac Hale Spencer: sspencer@alm.com or 215-557-2449. Read more stories like this at www.legalintelligencer.com.

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