“Who can call anything at this moment?” Kadida Kenner of The New Pennsylvania Project said. “The current administration, and those working in this ecosystem, must do everything to press upon their elected officials to ensure that a vote does happen.”
By Max Mitchell for Law.com
After several months languishing in the U.S. Senate Judiciary Committee, the nomination of Arianna Freeman to the U.S. Court of Appeals for the Third Circuit passed a significant hurdle recently, and observers remain hopeful, yet skeptical, that the federal defender, who would become the first Black woman appointed to the bench, will be confirmed before the midterm elections.
In a party-line 50-48 vote Wednesday, the Senate voted to discharge Freeman’s nomination from the Judiciary Committee. The measure passed with two senators abstaining, including Sen. Pat Toomey, R-Pennsylvania, whose state sits within the Third Circuit.
In April, the Judiciary Committee deadlocked 11-11 on Freeman’s nomination, following a contentious hearing in which Republicans criticized Freeman for her work representing criminal defendants. Freeman has worked at the Federal Community Defender’s Office for the Eastern District of Pennsylvania since 2009.
Although a cloture vote by the full Senate has not been set, observers expect the vote will be scheduled for sometime in July.
According to University of Richmond School of Law professor Carl Tobias, getting out of the judicial committee all but ensures Freeman’s confirmation to the Third Circuit. He said all Democratic senators have voted to approve all of Biden’s nominations so far, and noted that, even if the Senate divides 50-50 on Freeman’s confirmation, Vice President Kamala Harris is the tiebreaking vote.
However, Russell Wheeler of the liberal Brookings Institution, who has studied Biden’s nominations, said there is no guarantee the discharge vote means Freeman’s nomination will be approved before the midterm elections, which could threaten the confirmation hopes of any Biden nominee.
Wheeler noted that, while Freeman’s nomination has been pending for 156 days so far, the nominations of Nancy Abudu to the 11th Circuit, J. Michelle Childs to the D.C. Circuit and Andre Mathis to the Sixth Circuit have all been pending even longer, with Mathis’ now pending more than 210 days.
Wheeler also noted that, while Biden had been one of the most successful presidents in recent history in terms of getting new judges appointed to the bench during his first year in office, that pace has slowed in his second year, and Biden appears now likely to end his first two years being outpaced by presidents as far back as Bill Clinton.
Speculating, Wheeler said politics could be behind the recent slowdowns for Biden, especially since polling suggests the Republicans are favored to win back seats in the Senate and House.
“It’s just a guess, but with midterms coming up, maybe some senators aren’t willing to vote for anybody [Biden] nominated,” Wheeler said. “The time is running out. I’m not going to say she’s [definitely] going to be confirmed. If the Republicans take over the Senate, forget about it.”
Kadida Kenner of The New Pennsylvania Project, a nonprofit pushing to expand voter registration for underrepresented communities, said she wasn’t surprised by the deadlock in April, explaining that there are “some who are going to try their best to slow down this process and put up as many barriers as they can.”
Kenner said that with the current makeup of the Senate, she would expect a straight party vote, allowing Freeman’s nomination to go through. But, like Wheeler, she is somewhat skeptical.
“Who can call anything at this moment?” she said. “The current administration, and those working in this ecosystem, must do everything to press upon their elected officials to ensure that a vote does happen.”
Kenner said the fight to move the lower court nominations along took on new urgency following the U.S. Supreme Court’s ruling Friday in Dobbs v. Jackson Women’s Health Organization, which overturned 50 years of jurisprudence, including Roe v. Wade and Planned Parenthood v. Casey.
“Obviously with overturning Roe and Casey, our lower courts are always important, but this should be a clarion call to everyone about how important the lower courts are,” Kenner said.
On the matter of Toomey’s abstention, there was no clear reason for why he skipped Wednesday’s vote to move Freeman’s nomination out of the Judiciary Committee.
Tobias said the decision not to vote was “odd,” since Toomey has opposed numerous other Biden nominees, and Wheeler suggested the abstention could have been for the sake of “comity” given Harris’ ability to break a tie.
Kenner said Toomey’s abstention, and his 2016 decision to block the nomination of Rebecca Ross Haywood, who would have become the first Black woman on the Third Circuit, were ironic given his recent Tweets offering support for Juneteenth, which commemorates the end of slavery.
“We ask for Toomey to live up to what he likes to tweet about when it relates to the advancement of Black people in this country,” Kenner said.
Toomey’s office did not return a message seeking comment.
Full article: https://www.law.com/thelegalintelligencer/2022/06/27/time-is-running-out-3rd-circuit-nominee-clears-senate-hurdle-but-some-skeptical-of-confirmation-as-midterms-loom/