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Senate fails to confirm Togliatti for federal judgeship in Nevada

Updated December 22, 2020 - 4:42 pm

WASHINGTON — Nevada was jilted and left at the altar by Senate Majority Leader Mitch McConnell who failed to bring the nomination of Judge Jennifer Togliatti to the Senate floor for a confirmation vote.

President Donald Trump nominated Togliatti to a federal district judgeship in Nevada that has been vacant long enough to be considered an emergency by the Administrative Office of the U.S. Courts.

But despite support from home state Democratic senators, and a recommendation for confirmation by the Senate Judiciary Committee, McConnell, R-Ky., failed to bring the Nevada appointee and others from blue states to the floor for a vote before the Senate left town Tuesday.

Sen. Catherine Cortez Masto, D-Nev., a former state attorney general, voiced her frustration with McConnell for failing to schedule a vote for a mainstream jurist with bipartisan support.

“It is not a priority for Mitch unless it is in a category of somebody who is very conservative, right-wing, on the Federalist Society,” Cortez Masto told the Review-Journal.

With the Senate coming back for a possible override vote of the presidential veto of the defense bill, McConnell technically could still bring the nomination to the floor for a vote, although time is running out and Togliatti’s confirmation is not scheduled.

Up to Biden

If she fails to be confirmed, Togliatti, who enjoys a reputation as a stellar jurist in Nevada, would be forced to go through the senators’ judicial selection committee for vetting.

That panel recommends applicants to the senators to present to the White House for nomination, said Sen. Jacky Rosen, D-Nev.

In this case, the process would begin again after January when the committee could weigh other candidates for Cortez Masto and Rosen to submit to President-elect Joe Biden after he is sworn in Jan. 20. It would be up to Biden to nominate.

“If you get your recommendation in early, it will move early,” said Carl Tobias, a University of Richmond law professor and founding faculty of the William S. Boyd School of Law at UNLV.

“They should think about that,” Tobias said of the Nevada senators’ judicial selection process.

If Togliatti were again to be nominated, she would have already passed through an initial hearing by the Senate Judiciary Committee held last March. She was praised then by Chairman Lindsey Graham, R-S.C.

Several other jurists from states with Democratic senators — California and Connecticut — have also been passed over in the final weeks as McConnell rushed to confirm judges in states with Republican lawmakers.

One California judicial nominee was appointed in the waning days of the Senate.

Tobias said the process used by McConnell was one of favoritism, helping red state senators at a time of acrimonious partisan relations where Senate Democrats have forced roll call votes on nominees to slow the confirmation of Trump appointees.

An aide to McConnell would say only that Togliatti was not scheduled for a floor vote.

Delayed rulings

Although judicial selection has always been a partisan exercise, the victims of inaction are residents of judicial districts where long-term vacancies exist, delaying legal rulings and decisions on civil and criminal matters.

Nevada Chief District Judge Gloria Navarro has pleaded with Congress and the past administration to fill vacancies to streamline judicial decisions and rulings that affect residents and businesses in the state.

Nevada has seven federal judges, but two vacant seats, both considered emergencies by the Administrative Office of the U.S. Courts due to caseloads and the length of time that both have remained open.

Trump nominated Togliatti for the federal district judge seat that has been vacant since 2018 when Judge James Mahan took senior status.

Togliatti served as chief judge of the state’s 8th Judicial District Court, and was a mediator before being tapped by Trump to fill the Las Vegas-based federal seat.

“Judge Togliatti is a talented, trusted member of Nevada’s legal community and an extremely qualified candidate to serve on the federal district court for Nevada,” Cortez Masto said before the confirmation hearing.

Rosen also called Togliatti a qualified candidate during her confirmation hearing and urged her Senate colleagues to vote their approval.

Besides the vacant Mahan seat, a seat in northern Nevada has been vacant since 2016 when Judge Robert Clive Jones took senior status.

Trump did not nominate a candidate for that seat.

Remake of federal bench

In the past four years, McConnell has engineered a conservative remake of the federal judicial bench, confirming three Supreme Court justices, more than 50 appellate court justices and more than 200 federal judges.

McConnell has taken pride in his record of filling judicial vacancies that were backlogged after Republicans blocked President Barack Obama’s nominees in his final years as president.

Earlier this year, McConnell said that by filling judicial seats with conservative nominees, the GOP-led Senate has made “an important contribution to the future of this country.”

Still, Tobias said it was obvious that McConnell was favoring red states over blue states as he schedules confirmation for justices and administrative appointees.

In addition to Togliatti, another Trump nominee, Connecticut state Judge Barbara Jongbloed, has been advanced to the full Senate by the Judiciary Committee, but leapfrogged by nominees from red states for confirmation.

Contact Gary Martin at gmartin@reviewjournal.com or 202-662-7390. Follow @garymartindc on Twitter.

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