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Toomey's Explanation for Restrepo Delay Raises More Questions

05/13/2015 01:37 pm ET | Updated May 13, 2016

Pennsylvania Sen. Pat Toomey has been taking a lot of heat at home for collaborating with Chuck Grassley's scheme to delay Phil Restrepo's confirmation to the Third Circuit for as long as possible. Restrepo was nominated in November, half a year ago. But despite enthusiastic statements of support from both Sens. Toomey and Casey, Judiciary Committee Chairman Grassley has refused to schedule a hearing for Restrepo. PFAW has been blogging about this for several months, and Pennsylvanians who care about the courts are none too pleased.

The bad in-state press for Toomey has been mounting lately, including articles in the Philadelphia Inquirer ("A judicial nominee waits; Toomey gets blamed"), the (Allentown) Morning Call ("What's Holding Up a Pa Appeals Court Nominee?"), the Pittsburgh Post-Gazette ("Confirmation Vote on Pennsylvania Jurist Awaits 'Blue Slip' from Toomey"), and the Legal Intelligencer ("Political Maneuvers Holding Up Nominee for Third Circuit"). Toomey's obstruction of the man who would be only the second Latino judge ever on the Third Circuit (and the first from Pennsylvania) has also prompted coverage in the Latin Post ("Democrats, National Groups Urge GOP Senators to Expedite Nomination Process of Judge Luis Felipe Restrepo After Delays"), criticism from leading civil rights figure and PFAW Board member Dolores Huerta ("Toomey and Republicans: Do Your Job, Confirm Restrepo"), and a request from the Hispanic National Bar Association that Toomey urge the Judiciary Committee to swiftly consider the nomination.

This morning, after a Post-Gazette editorial aptly headlined "Unjust Delay: Toomey Is to Blame for a Stalled Nomination," Toomey wrote a letter to respond. Unfortunately for him, his explanations don't hold water.

Toomey claims that he fully supports Restrepo's elevation and blames others for the delay:

The first step to Judge Restrepo's confirmation to the third Circuit is a thorough background investigation. No hearing or vote goes forward until that investigation is completed. The Senate Judiciary Committee has not yet completed that investigation.

That is the reason the committee has not yet held a hearing on Judge Restrepo's nomination -- a fact that could have been easily learned with a call to the committee.


But that convenient explanation raises more questions than it answers and, in fact, doesn't pass the laugh test.

Since Judge Restrepo already had a thorough background investigation for his confirmation to the district court in 2013, why does it take half a year to complete one that covers only the short interval since then? It took less time to do background checks and proceed to hearings for people nominated at the same time, but who had not already been thoroughly vetted by the Judiciary Committee.

And why didn't Toomey make this simple and quick explanation when asked by the Huffington Post's Jennifer Bendery earlier this month? Instead, he took the time to say that he didn't have time to explain, then he ducked into a senators-only elevator.

And why didn't Sen. Grassley mention this when asked by Bendery on the same day, before the crush of bad press that Toomey is now responding to? When asked when the hearing would be, Grassley cited only the blue slip and said nothing about an ongoing background investigation. (After the media scrutiny of Toomey began to mount, Grassley cited the background investigation rather than the lack of a blue slip as the cause of the delay.)

And even if we accept the background investigation story, why hasn't Toomey been pushing the committee to hurry it up, considering this is to fill a judicial emergency on a court where a second vacancy will be opening in just a few weeks?

Toomey says he fully supports the nomination. As Inigo Montoya might say, I don't think that word means what he thinks it means.