In May 2018, President Donald Trump selected Gary R. Brown to serve as a district judge and fill a vacancy on the U.S. District Court for the Eastern District of New York, which includes Nassau and Suffolk counties. Three years earlier, President Barack Obama also had selected Brown, who has long served as a magistrate judge in the district, to fill the same vacancy.
In 2015, Brown, an experienced mainstream jurist, earned the significant backing of New York Sens. Chuck Schumer and Kirsten Gillibrand and his nomination was approved twice by the Senate Judiciary Committee — in November 2015 and September 2018. But his nominations languished and expired in January 2017 and 2019. Senate Republican leaders denied Brown and 47 other nominees floor votes in 2016 in hopes that a Republican would be elected president that year. GOP leaders also denied Brown and 30 other nominees 2018 floor votes because Republicans stressed appellate confirmations that year. Because Brown is a well-qualified, consensus nominee and the court desperately needs this opening filled, I believe the Senate must promptly confirm him.
Brown, who has been a magistrate judge since 2011 and was an assistant U.S. attorney for almost a decade, has been praised for his distinguished and impressive record and his commitment to justice and integrity. Brown’s hearing in October 2015 went well, and Senate Judiciary Committee members who posed questions appeared satisfied with his responses. Nevertheless, the nomination stalled on the Senate floor. Schumer and Gillibrand pursued a swift vote, yet Senate Majority Leader Mitch McConnell (R-Ky.) denied their request, so Brown’s nomination expired during January 2017.
In May 2018, Trump renominated Brown. In September, the Judiciary Committee approved him 21-0, but the Senate again failed to grant Brown a full chamber vote and his nomination expired on Jan. 2. Although Trump renamed 50-plus other judicial nominees in January, he did not rename Brown until April 8, and sent the nomination to the Senate only on May 21.
The Eastern District has experienced tremendous growth both in the number of judges serving on the bench and the population the court serves — more than 8 million. But the district now confronts five vacancies in 16 active judgeships, so the court is operating without 30 percent of its jurists. The Administrative Office of the U.S. Courts designates all five as “judicial emergencies” because they satisfy two criteria. First, the openings are protracted. Indeed, Brown would fill a vacancy that has remained empty for more than 1,600 days. Second, Eastern District judges manage caseloads that are 40 percent higher than average in the 93 other federal districts, which reflect the caseload’s magnitude, the substantial number of vacancies and their prolonged length. The protracted openings and huge docket frustrate civil suits’ expeditious, inexpensive and fair resolution because criminal cases receive precedence under the Speedy Trial Act. Such situations pressure judges and complicate justice’s delivery by further overloading an already taxed system.
Sen. Lindsey Graham (R-S.C.), who chairs the Judiciary Committee, expeditiously processed Brown. He swiftly arranged a June 20 panel ballot, and the nominee won approval on a voice vote. Given Brown’s overwhelming ballot, McConnell must rapidly hold a floor vote.
The Senate must quickly approve him, because Brown deserves confirmation and because the Eastern District of New York depends on all of its judges to guarantee justice is done.
Carl Tobias, an expert on federal judicial selection, is professor of law at the University of Richmond in Virginia.