After last night’s election in Georgia for two Senate seats, with control of the Senate up for grabs, President-elect Biden’s prospects for appointing federal judges are looking suddenly far rosier. As I write this, one Georgia race has been called for the Democratic candidate and the other appears likely to be as well. If that comes to pass, then the Democrats will control the Senate, and instead of two years of McConnell-led stonewalling we’re likely to see the machinery for confirming judges more or less functioning for at least the next two years. That would be a staggeringly important development.
So what does this mean here in the Third Circuit? Let’s take a look.
There are 14 seats (active judges, as distinct from senior-status or inactive judges) on the court. All 14 currently are filled, which means that no new judges can be added until-
- an active judge takes senior status
- an active judge takes inactive status or retires
- an active judge is elevated to the Supreme Court
- an active judge is impeached or dies
Of these, the first—judges going senior—is by far the most common, so let’s focus on that. On the Third Circuit, there are three active judges who are eligible to take senior status now: Chief Judge Smith and Judges McKee and Ambro. Chief Judge Smith has stated that he will remain chief (and thus remain active) until December of this year, when he will be succeeded by Judge Chagares. To my knowledge, none of the three have otherwise announced their intentions
Chief Judge Smith (Pa.) was nominated by Bush II and is generally seen* as a moderate conservative. Judge McKee (Pa.) was nominated by Clinton and is generally seen as a liberal. Judge Ambro (Del.) also was nominated by Clinton and is generally seen as a moderate liberal.
In addition to the three currently eligible, two more will become eligible to go senior during the current Senate, both in the fall of 2022: Judges Jordan and Greenaway, Jr.. Judge Jordan (Del.) was nominated by Bush II and is generally seen as a conservative, Judge Greenaway, Jr. (N.J.) was nominated by Obama and generally is seen as a moderate liberal.
In sum, 5 of the court’s 14 active judges will be eligible to take senior status and thus open their seat to be filled by the incoming administration. Of these 5, 3 were nominated by Democratic presidents, 2 by Republicans.
I’ve been a broken record expressing my view that Trump “flipping” the Third Circuit—that is, the court going from a majority of its active judges having been nominated by Democratic presidents to a majority nominated by Republican presidents—isn’t as big a deal as many on both sides suggest. My view would remain the same if Biden filled all 5 senior-eligible seats and the court went from its current 8-6 Republican majority to a 7-7 even split. A fundamentally centrist court will remain so.
Predicting what individual judges actually will do would be foolish. We have no idea. I doubt all of the judges have even decided themselves. I don’t think many informed observers expect those decisions to play out along neat nominating-party lines. I predict there will be openings—beyond that, we’ll see.
Recent senior-status decisions of Third Circuit judges offer some perspective:
- Judge Vanaskie (Obama) went senior shortly after becoming eligible and his seat was filled by Trump;
- Judge Fisher (Bush II) went senior shortly after Trump’s inauguration after being eligible to do so through most of Obama’s presidency and his seat was filled by Trump;
- Judge Fuentes (Clinton) went senior shortly after becoming eligible at the end of Obama’s 2nd term and his seat was filled by Trump;
- Judge Rendell (Clinton) went senior shortly after becoming eligible with a year and a half left in Obama’s second term, and when Obama’s nominee was blocked the seat was filled by Trump;
- Judge Scirica (Reagan) went senior early in Obama’s second term after being eligible since early in Bush II’s second term and his seat was filled by Obama.
To me, all that mainly just reinforces the view that judges’ individual decisions are unlikely to play out along mechanical partisan lines.
As for who the Biden administration would nominate for any Third Circuit openings, that too is tough to predict. A recent (paywalled) Law360 article looking at that question nationally mentioned five Third Circuit candidates: EDPA Judge Wendy Beetlestone, Rebecca Haywood, Nilam Sanghvi, Ilana Eisenstein, and Catherine Struve. It’s certain that many others will receive serious consideration.
One thing I’m certain of: Biden should expect intense pressure to nominate women to the Third Circuit. Only 2 of the court’s current 14 active judges are women, which in my view is simply unacceptable.
President Trump got to fill four seats on the Third Circuit, three of them formerly held by judges nominated by Democratic presidents. Trump shifted the overall court to the right but I believe he did not transform it. I don’t think Biden will transform the Third Circuit either, and I suspect he’ll shift the court less than Trump has.
After last night, it will be fascinating to see.
* I’m endeavoring to describe here how judges are broadly viewed in ideological terms for the benefit of general readers. Close followers of the court recognize that such labels are of limited value.