Confirming Judge Restrepo to the Third Circuit
Volume 88, Online
By Carl Tobias, Williams Chair in Law, University of Richmond [PDF]

From the moment that the Grand Old Party (GOP) won the Senate in November 2014,  Republicans have directly and incessantly vowed to establish “regular order” in the upper chamber again. Lawmakers employed this phrase to depict the purported restoration of strictures that prevailed until Democrats subverted them. In January 2015, when the 114th Congress began, Senator Mitch McConnell (R-Ky.), the Majority Leader, proclaimed, “[w]e need to return to regular order,” while the legislator has dutifully recited that mantra ever since.  Senator Charles Grassley (R-Iowa), the head of the Senate Judiciary Committee, espoused analogous concepts. Illustrative was his January 2015 pledge to duly exercise “regular order” in scrutinizing President Barack Obama’s excellent mainstream judicial nominees.  Because senators have diligently completed practically both sessions of the 114th Congress throughout which the majority trumpeted “regular order,” its application to a daunting constitutional responsibility—providing advice and consent on nominees—deserves review.

A striking example of GOP inaction can be found in the process of confirming Judge Luis Felipe Restrepo to the Third Circuit. This exceptional, consensus prospect waited seven months on a hearing after President Obama had initially designated him for the Third Circuit at the powerful suggestion of Pennsylvania Senators Robert Casey (D) and Pat Toomey (R). This survey ascertains that counterproductive partisanship suffuses appointments—particularly evidenced by slow panel consideration and the confirmation of eleven jurists all last year, the fewest since President Dwight Eisenhower occupied the White House, and merely nine thus far over 2016.