Any hope for filling Third Circuit’s empty seat in 2016? I’m skeptical.

With Judge Restrepo finally on the Third Circuit, attention has turned to the Third Circuit’s other empty seat, the one created when Judge Rendell took senior status in July of last year. Even though Rendell announced her decision a year ago now, President Obama still has not nominated a replacement.

P.J. D’Annunzio had this article earlier this month in the Legal Intelligencer, headlined “Pa. US Courts Still Hampered by Vacancies,” reporting that the Philadelphia Bar Association plans to write to Senators Toomey and Casey “about the urgency of filling Rendell’s seat.” Recent letters to the editor, including this one by Glenn Sugameli of Judging the Environment and this one by Christine Stone of Why Courts Matter, have sounded the same note.

My guess, not based on any insider information, is that the cause of the nomination delay is that Toomey is dragging out nomination negotiations with Obama as long as he possibly can. At some point, Obama would give up hope and submit a doomed nomination, but until then Toomey may have little to gain from signing off of any nominee. Toomey took a political beating over the Restrepo nomination delay and I bet he prefers having the delay look like Obama’s fault instead of his.

While I certainly hope the Rendell seat is filled before Obama leaves office, I’ll be amazed if it is. Conservative activists are pushing hard to shut down confirmations already. Heck, they even wanted to block Restrepo. Last month I posted this informed commentator’s prediction that Restrepo will be the last Obama circuit judge confirmed. And Republicans will get a measure of credit for a deal to fill 4 other judicial spots by the end of February. I can’t persuade myself that Toomey will decide it’s good re-election-year politics to support any nominee for the Rendell seat.

One of the main talking points the liberal activists are using is that, back in 2008, Bush nominated Steven Agee for the Fourth Circuit in March and the Senate confirmed him in May. The Senate was Dem-controlled and one of Agee’s home-state senators was a Dem (and thus able to block the nomination). But I doubt the Republican Senate leadership today will find the Agee confirmation compelling precedent. There were 5 (!) openings on the Fourth Circuit at the time, and none of the other 4 Bush nominees made it through. If that’s the best example the Dems have, well, good luck.

I hope I’m wrong, but I predict that the too-long wait to get the Third Circuit to full strength will drag on at least another year.