Confirm judges Baxter and Horan for the Western District of Pennsylvania

On Nov. 24, Western District of Pennsylvania Judge David Stewart Cercone assumed senior status after fifteen years of dedicated service. The jurist’s assumption of senior status means that the district experiences vacancies in five of its ten active judgeships, which may complicate efforts to deliver justice. Indeed, only one California district among the 94 has more vacancies. President Donald Trump can ameliorate the national judicial vacancy crisis, which the Western District epitomizes, by promptly nominating Judges Susan Paradise Baxter and Marilyn Horan whom President Barack Obama previously nominated but the Senate refused final votes.

In July 2015, President Barack Obama nominated Susan Paradise Baxter, who has served as a Magistrate Judge in the Western District of Pennsylvania for over two decades, and Marilyn Horan, who has served as a Court of Common Pleas Judge in Butler County for a similar period, to vacancies on the Western District. The jurists were very qualified, moderate nominees, whom Pennsylvania Sens. Bob Casey (D) and Pat Toomey (R) powerfully supported. The Senate Judiciary Committee approved both on a Jan. 28, 2016 voice vote absent dissent. Nevertheless, they languished on the floor, primarily because Republican leaders would not grant them confirmation debates and ballots. Because Judges Baxter and Horan are experienced, mainstream nominees and the Western District requires all of its vacancies filled, President Trump should promptly renominate the jurists and the Senate must swiftly confirm them.

{mosads}The District currently encounters five openings in ten active judgeships. Thus, the court lacks fifty percent of its active judicial complement, which frustrates speedy, economical and fair case disposition. Resolving disputes without half of the judgeships authorized can also place greater burdens on the tribunal’s jurists.

On July 30, 2015, Obama nominated Baxter and Horan. He praised their excellent legal careers, observing that the jurists had assembled “distinguished and impressive records.” The White House press release declared that Baxter had been a Magistrate Judge since 1995, while Horan had worked as a state judge since 1996 and as a practitioner at a respected law firm in Butler for seventeen years.

However, the Judiciary Committee did not set their hearing until Dec. 9, 2015. The Pennsylvania senators introduced the nominees, lauded the jurists’ superb qualifications and called for swift Senate confirmation. That hearing proceeded smoothly, and the members who asked questions appeared satisfied with the nominees’ responses. On Jan. 28, 2016, the panel sent Baxter and Horan to the floor on voice votes with little discussion and no controversy.

After January, they remained on the floor waiting to receive debates and ballots. The Republican leadership claimed that it was restoring the Senate to “regular order.” Nonetheless, Baxter, Horan and many other well qualified, consensus nominees waited months for votes. Casey and Toomey sought a prompt floor ballot, yet Sen. Mitch McConnell (R-Ky.), the Majority Leader, never scheduled it. Toomey pursued unanimous consent on Baxter and Horan, while several Democratic members proffered similar requests on 19 remaining district nominees who needed final votes, but GOP senators objected. 

The renomination and confirmation of Judges Baxter and Horan can be achieved rather easily. Casey and Toomey should ask President Trump to promptly nominate them again, just as the president recently renominated five other strong, moderate Obama nominees who had earned committee approval like Baxter and Horan. The Pennsylvania jurists would only need panel ballots and floor votes.

Judges Baxter and Horan are fine, consensus nominees, who enjoyed the Pennsylvania senators’ strong support and deserve appointment, while the District requires all of its active judges to deliver justice. Thus, President Trump should promptly renominate the jurists, and the Senate must rapidly confirm them.

Carl Tobias is the Williams Chair in Law at the University of Richmond.