In October, President Obama nominated Judge Shwartz to a seat on the Third Circuit Court of Appeals. Senator Lautenberg promptly hailed that nomination. Senator Menendez did not. Today, major newspapers are reporting what some in the legal community have been talking about for quite awhile: Senator Menendez has not signed off on the nomination.
The news reports speculate, as does talk in the legal community, that Senator Menendez’s reasons relate to Judge Shwartz’s service in the United States Attorney’s office under then United States Attorney Chris Christie, and/or the role of her longtime companion, who headed the Special Prosecutions Unit of the U.S. Attorney’s Office when that office, under Christie, investigated Senator Menendez for alleged improprieties. That investigation, which occurred during 2006 while Senator Menendez was running for the Senate, was widely viewed as political, and ended with no charges being brought.
Today, Senator Menendez issued a statement saying that his position was based on “substantive” concerns, not personal ones. He cited his perception, in his interview with Judge Shwartz, that she “did not adequately demonstrate the breadth of knowledge of constitutional law and pivotal Supreme Court decisions such as Citizens United that we should expect from a United States Circuit Court judge,” that she “misapplied the application of strict scrutiny versus rational basis review to the questions at hand,” and that she “did not express substantive knowledge as to the scope of the rights of corporations under the Constitution or jurisprudence on the constitutional limits of Executive Branch powers.”
Only Senator Menendez and Judge Shwartz know what was said at this interview. But I and others who have appeared before Judge Shwartz have virtually uniformly found her to be knowledgeable, fair and judicious.
Apparently, Senator Menendez has not yet returned the “blue slip” that signifies his approval of the nomination. He can yet do so. On the merits, Judge Shwartz is immensely talented and highly qualified to serve on the Third Circuit. Like every Circuit judge, she can and will learn some things on the job that her current position did not call on her to know in detail. Senator Menendez should act to approve the nomination.