Category Archives: Judges

A few highlights from the Third Circuit conference

I’ve just returned from the Third Circuit judicial conference in Lancaster. All 11 active judges were there, along with at least six senior judges and a bevy of district judges from around the circuit. I loved having the chance to see so many of the circuit’s judges and fellow lawyers. Especially everyone I got to meet for the first time, and extra-especially everyone who exclaimed to me, “Wait, are you that CA3blog guy?!”

A couple highlights and random observations:

  • The theme of this year’s conference was technology. Former Third Circuit Judge Chertoff’s keynote address focused on data, privacy, and the doctrinal challenges that lie at their intersection. And fellow Garth clerks Orin Kerr and Harvey Rishikof expanded on the topic in a dazzling presentation the next morning, as did several other sessions.
  • Howard Bashman‘s How Appealing blog got a nice little Supreme Court shout-out. During Justice’s Alito’s lunchtime fireside chat with Chief Judge Smith, Alito was confessing to something or other. Maybe it was his strategy for how to interrupt lawyers at Supreme Court argument? Anyway, Alito joking pleaded for secrecy, and said something like, “Now, I know Howard Bashman is here today, but …”
  • Judge Scirica received the prestigious 2017 American Inns of Court Professionalism Award for the Third Circuit. (The press release is here.) In his acceptance remarks, Scirica spoke movingly of the importance of an independent judiciary and the critical role the practicing bar and the academy have to rise to the judiciary’s defense when its decisional independent is unfairly attacked.
  • While Judge Jordan was presenting the award to Judge Scirica — he described himself as “a devout member of the Tony Scirica fan club”  — Chief Judge Smith playfully leaped over and rubbed Jordan’s bald head. Jordan said something like “I knew that was coming.” Then, during the dessert reception that night, I saw Smith do the same thing to Judge Ambro’s far-from-bald head. This, friends, is a collegial court.
  • The Third Circuit’s low oral argument rate is a sore subject for many lawyers, and during the last session of the conference a lawyer in the audience made a plea for more oral arguments. In response, panelist Judge Shwartz explained that any one judge on the panel can call for argument, so when the court doesn’t grant argument that means all three agreed. She said the briefing was usually excellent and many appeals involved straightforward issues. She also said that she is mindful of how much work preparing for oral argument is for the lawyers.

It was a tremendous event, and I’m looking forward to the next one already.

The Third Circuit has 3 open seats. Who should fill them? [updated]

With Justice Neil Gorsuch confirmed, attention now turns to filling vacancies on the lower federal courts, including the Third Circuit. David Lat posted on the topic on Above the Law on Friday, and his post contained at least two points of particular interest to Third Circuiters:

  • “[T]he nominees are very young — some names I’ve heard mentioned are still in their 30s,” and
  • “I’ve heard through the grapevine that interviews for some (but not all) spots on the Third, Seventh, and Ninth Circuits … are underway.”

The Third Circuit urgently needs judges. Of the 14 seats on the court, three are open:

  • Judge Rendell’s seat (Pennsylvania), open since July 2015. President Obama nominated Rebecca Ross Haywood for this seat but Senator Pat Toomey blocked her.
  • Judge Fuentes’s seat (New Jersey), open since July 2016.
  • Judge Fisher’s seat (Pennsylvania), open since February 2017.

The $64,000 question: Who should fill these three seats?

Home-state senators have the power to block judicial nominations by withholding their blue slips. That means Pennsylvania’s Democratic Senator Robert Casey can block two of the seats, and either of New Jersey’s Democratic Senators (Cory Booker and Bob Menendez) can block the third.

Casey and Menendez are both up for re-election in 2018. Menendez is under indictment for federal corruption charges. Booker has been mentioned as a potential 2020 presidential candidate. So all three likely will be under the microscope.

What will Trump do? What will Casey, Booker, and Menendez do? What should they do?

I’ve given this a lot of thought since my last posts about it (here and here) last November, and I believe the solution is straightforward.

First, all three seats need to be filled. ‘They blocked us before so we’ll block them now’ is the wrong answer.

Second, at least two of the three seats should be filled by women. The Third Circuit has only two active judges who are women, the worst gender imbalance [until recently, see below] of any circuit in the country. Perpetuating that imbalance is unthinkable.

Third, both the Rendell seat and the Fuentes seat should be filled by consensus picks. The precedents here are Judges Greenaway and Vanaskie, both nominated by President Obama with a Democratic-controlled Senate to fill seats that opened during President Bush’s presidency.  Both were moderate centrists — Greenaway was a federal criminal prosecutor and corporate counsel who clerked for a Republican-nominated judge, Vanaskie was MDPA chief judge with a decade and a half on the federal bench and was a Scranton commercial litigator before that.  And both were over 50 when commissioned — Greenaway 52, Vanaskie 56.

Yes, Republicans may have stolen the Rendell and Fuentes seats from Democrats by obstruction, but the way forward for Democrats now is compromise, not more obstruction. So, agree on two well-qualified moderate Republicans in their 50’s, one from PA and one from NJ, and confirm them.

Democrats may fight to fill the Rendell seat with a moderate Democrat, arguing that Republicans stole the seat by Toomey’s indefensible obstruction of Haywood and citing President Clinton’s compromise nomination of Republican Judge Barry as a precedent. That was my view before, and it may still help as a bargaining position, but the fact is those sorts of arguments didn’t get Republicans in the seats filled by Greenaway and Vanaskie, so I don’t expect them to get a Democrat in Rendell’s seat, either.

Fourth and finally, the Fisher seat should be Trump’s to fill with the qualified nominee of his choosing. Judge Fisher waited to go senior until Trump took office, so it’s a Republican seat, fair and square.  If the administration wants a 38 year-old Federalist Society stalwart here, it should be able to. But I expect Casey to insist that this nomination be paired with the Rendell-seat nomination to protect his leverage.

This isn’t rocket science. The right answer is clear enough. The administration and the home-state Democratic senators ought to be able to work together amicably and expeditiously to fill these seats and get the Third Circuit finally back to full strength.

But if Trump tries to fill all three seats with young conservative partisans? Expect a war.


UPDATE: Professor Jonathan Adler has helpfully pointed out to me that the Eighth Circuit is now down to one woman active judge (Judge Diane Murphy took senior status in November), so the Third Circuit no longer has the worst gender imbalance of the circuits. Still.

Also, as Howard Bashman‘s How Appealing noted, Professor Orin Kerr responded to this post on Twitter here and here proposing Lee DeJulius, Stephanos Bibas, and Chris Paoelella (“assuming he’s Jersey enough”) for the three seats.

Judicial Conference asks for new judgeships, but none for the Third Circuit

The Judicial Conference decided today to ask Congress for 57 new federal judge seats. Five are circuit judgeships, all for the Ninth Circuit. The rest are district judgeships, including three for New Jersey and one for Delaware.

Alas, no new judgeships for the Third Circuit, which hasn’t gotten a new seat in over a quarter-century even though it’s deciding 30% more cases than it did in the late 1990s.

The Judicial Conference announcement is here, and the list of requested judgeships is here.

Judge Fisher takes senior status and becomes law school jurist in residence

Third Circuit D. Michael Fisher has taken senior status, effective February 1. I’d predicted here that he would and made passing mention here that he had, but it’s an important event that warrants its own post.

Judge Fisher, 72, served as an active judge on the court since 2003. He had been eligible to go senior since 2014. His assumption of senior status creates a third open seat on the court.

The same day Judge Fisher assumed senior status, he was named the University of Pittsburgh Law School’s first Distinguished Jurist in Residence:

Currently an adjunct professor at Pitt Law, he is expected to teach two courses every fall term and be on site during the spring term to meet with students and participate in other activities.

“The Distinguished Jurist in Residence program advances the law school’s twin goals of excellence in teaching in order to ensure that our graduates are practice-ready and of encouraging the kind of public service to which Judge Fisher has dedicated his career,” said Pitt Law Dean William M. Carter Jr. “This new program will bring extraordinary judges to the law school to enrich the educational experience of our students, and I am proud and honored that Judge Fisher has agreed to serve as our inaugural Distinguished Jurist in Residence.”

“I have had a longtime association with the University of Pittsburgh and its law school as a Trustee and adjunct professor,” said Fisher. “It is exciting to have this opportunity to take a more significant role at the law school to work with outstanding faculty under the leadership of Dean Carter and to help in the education of our excellent students.”

It’s a well-deserved honor for the court’s newest senior judge.

Judge Barry assumes inactive status

The Associated Press reported on Thursday that Third Circuit Judge Maryanne Trump Barry assumed inactive status, effective immediately. She will cease hearing cases; according to the report she is giving up her staff and chambers but can still serve on court committees. Chief Judge D. Brooks Smith complimented her in the story as “a talented judge with a knack for handling complex cases.”

Characteristically, Judge Barry did not announce a reason for stepping down now. She is 79 years old and has been a federal judge for over three decades, and that’s reason enough. But she also has landed in the headlines often over the last year and a half for reasons related to her brother, President Trump. I get the sense that she detests the controversial attention, and I can’t help wondering if that contributed to her decision to go inactive now.

Judge Barry is the second Third Circuit judge to assume inactive status in the past year, after Judge Sloviter did so last April.  The court now has only two active and two senior sitting women judges.

We get to keep Judge Hardiman

Last week I predicted that President Donald Trump would nominate Third Circuit Judge Thomas Hardiman over Tenth Circuit Judge Neil Gorsuch. Yesterday, Trump picked Gorsuch. Whatever other talents I may have, it appears that reading Trump’s mind isn’t among them.

I feel for Judge Hardiman, who earned heartfelt support from those he’s worked with, regardless of party affiliation, from every phase of his career. The past weeks cannot have been relaxing for the Judge and his family. He came so very close.

But while I’m sad today for Judge Hardiman, I’m glad for the Third Circuit. For now at least, we get to keep him.

An “exposed … plagiarist” just broke the news that Gorsuch is the nominee

Benny Johnson of Independent Journal Review has this report confirming that President Trump will name Judge Neil Gorsuch as his Supreme Court nominee.

Two high-ranking administration sources have confirmed to Independent Journal Review that President Donald Trump’s Supreme Court pick is Colorado Judge Neil Gorsuch.

Gorsuch, who recently traveled to Washington, D.C., was put on Trump’s short list for the appointment after he met with the then-president-elect after the 2016 election.

Speaking on background, an administration source instrumental to the SCOTUS selection process tells IJR, “Yes. It is Gorsuch. 100 percent. The Hardiman thing is a head fake.” Thomas Hardiman is the other judge Trump was considering for the vacancy, who is also in Washington, D.C.

A second source within the Trump administration confirmed IJR’s reporting.

A head fake? Good god.

Now, if I were a high-ranking administration source eager to pour my leaking heart out about who the President of the United States was going to nominate to the Supreme Court, Benny Johnson is not the reporter I would choose. This 2015 Washington Post story calls him a “disgraced journalist[]” and describes how he lost his job as “viral politics editor” at Buzzfeed when he was “exposed as a plagiarist.”

Strange days.


CNN is reporting that Gorsuch has been told he is the likely pick

Link, story by Ariane de Vogue:

The two judges who have been considered the top finalists to be President Donald Trump’s nominee for the Supreme Court — Neil Gorsuch and Thomas Hardiman — are being brought to Washington ahead of tonight’s White House announcement, sources tell CNN.

The move comes as there were increasing indications that Gorsuch will be Trump’s choice, sources briefed on the White House deliberations tell CNN.

One source said that Gorsuch was told it was likely him. Those close to the process warn that until it is announced, Trump could change his mind.



Here are a few Twitter chatter highlights:

Bill Kristol: “I actually think Trump will name Gorsuch, and look forward to @tribelaw putting partisanship aside and testifying for him.”

Laurence Tribe: “Gorsuch is as smart as he is conservative, and he writes elegantly. Hardiman is a friend of Trump’s sister. Whom do YOU think T will name?”

Eric Lesh: “So according to @NPR reporting, Trump SCOTUS shortlister, Judge Hardiman, personally thinks climate change is a hoax

Orin Kerr: “If Trump wants to lock in support from his GOP base, I think he’ll get that with Gorsuch. Not so much with Hardiman.”

Ann Coulter: “If @realDonaldTrump’s S. Ct nominee is Hardiman, Trump’s immig. policies won’t stand a chance. Hardiman is the Jeb! Bush of judges.”

Rogue POTUS Staff: “#UnholyTrinity back Gorsuch for SCOTUS. Had POTUS convinced. But POTUS swaying back to Hardiman for spite, despite look of more nepotism.”

Peter Hasson: “Source tells me re: SCOTUS: Trump liked Hardiman’s personality/blue-collar background but concerns over Hardiman’s immigration stance.”

Melissa Stanzione: “tidbit: Been talking 2 a lot of former clerks for #SCOTUSnominees Gorsuch, Sykes, Pryor, Kethledge & Hardiman 1/ Not one peep from Hardiman clerks??? Any former clerks who want to chat? What could it mean??? 2/  Correction: haven’t been talking to Hardiman clerks because haven’t gotten responses!”

Ed Whelan: “I knew that this would be a boring presidency.”

Jeff Zeleny [CNN]: “Two finalists – Gorsuch and Hardiman – being brought to Washington ahead of announcement, learns. Many signs point to Gorsuch.”

Deirdre Walsh [CNN]: “SCOTUS news:Gorsuch told he’s likely pick but Trump bringing Hardiman to DC too via @Arianedevogue & @PamelaBrownCNN”

Daniella Diaz [CNN]: “There is increasing indications that Neil Gorsuch will be Trump’s choice for SCOTUS. ”

Aaron Martin: “Fed Judge Mike Fisher on possible #SCOTUS nom of coworker Hardiman: “A great choice…would be nice to have someone from Pgh on SC.” #WPXI”

SCOTUSDaily: “Word has it, Gorsuch is our guy. #SCOTUSnominee”

Kevin Daley: “I’m hearing that personnel are in place in Washington to guide GORSUCH through the confirmation process.”

Peter Hasson [DailyCaller]: “Sources close to Trump: pick is supposed to be Gorsuch and was settled days ago..But still outside chance Trump calls audible (Hardiman)”

A Hardiman profile in Delaware Law Weekly

P.J. D’Annunzio just posted this profile of Judge Hardiman for Delaware Law Weekly, headlined, “Eyes Shift to Hardiman as Trump Prepares His Supreme Court Pick.”

One good quote here (link added):

Stephen Orlofsky, a former New Jersey federal judge and past president of the Third Circuit Bar Association, has had cases before Hardiman.

Orlofsky said Hardiman doesn’t betray any political leanings on the bench.

“I have not found Hardiman to be an ideologue,” he said. “He calls it the way he sees it, he’s always well prepared, he’s a smart guy. I’d rather appear before him then a lot of judges because he’s engaged.”

But I believe my favorite part of the story comes when the intrepid reporter calls up Judge Barry’s chambers for a comment:

[A]n assistant to Trump Barry relayed a message from the judge: she “hasn’t done interviews for the past 34 years and isn’t going to start now.”

Santorum among those backing Hardiman

Shane Goldmacher and Eliana Johnson just posted this story on Politico, headlined, “Trump’s Supreme Court pick gets personal.” Former Senator Santorum’s take:

Those pushing Hardiman, including former presidential candidate Rick Santorum, are explicitly appealing to Trump’s populism.

“I just think this is a signature moment for the president,” said Santorum, who has been in touch with Trump, Vice President Mike Pence and other administration officials to lobby on Hardiman’s behalf.

“You wouldn’t know he’s a federal judge. You just wouldn’t,” Santorum said of Hardiman, who said he spent time with in Washington during the inauguration. Santorum said the responses when people met Hardiman were the same: “’That guy is going to go on the Supreme Court? He’s such a good guy, he’s such a real person.’”

“You have Gorsuch, who comes from a pedigree, a background — in the vernacular you would say he’s an elite — went to Columbia and Oxford and Harvard and clerked for the Supreme Court and his parents were in the Reagan cabinet which is a terrific pedigree…He would be a very traditional pick and would fit in with all the other Harvard and Yale-educated lawyers on the court,” Santorum said. “The one thing I’ve always liked about Tom is Tom is not your Harvard, Yale lawyer.”

Santorum was a PA senator when Hardiman was chosen for the district court in 2003.

The article reports that “Gorsuch remains the favorite in elite conservative legal circles.”

RedState: “Donald Trump’s Supreme Court Pick Should Not Be Thomas Hardiman”

Link here. The gist:

In my view, Thomas Hardiman does not have enough of a record of solid calls in controversial cases to give judicial conservatives confidence that he can withstand the heat of deciding a nationally debated case that is central to the culture wars. Of the three current front-runners, Bill Pryor and Neil Gorsuch fit that bill more closely.

Hardiman is conservative, no doubt — in a somewhat authoritarian way at times. He is solid on the Second Amendment, where his decisions give the greatest hope to judicial conservatives that he would be willing to stick his neck out for a principle. Hardiman tends to be more authoritarian on the First Amendment and other issues relating to government power.

But most fundamentally, we don’t really know whether he has the backbone to stare down leftist orthodoxy in a tough case. Understand: judging is not a matter of achieving the “right result” but a question of how you get to the result. Whether Hardiman is a consistent enough judicial conservative to replace Antonin Scalia is, in my mind, an open question. I thought John Roberts was a solid pick despite his relatively sparse record, and folks like Ann Coulter disagreed, saying we didn’t have a solid enough basis to know what Roberts would do.

Turned out she was right.

We can’t make that mistake again.


White House sources say Trump could announce Supreme Court pick Monday and Hardiman is the leading contender: roundup [updated]

UPDATE Monday: President Trump has tweeted that he has made his choice and will announce it Tuesday at 8 p.m.

Julie Pace of AP reports:

A White House official says President Donald Trump could announce his pick for the Supreme Court as early as Monday.

Trump originally said the announcement would come on Thursday, but the official says the timeframe could be sped up.

Three federal appeals court judges are said to have emerged as leading candidates: Neil Gorsuch, Thomas Hardiman and William Pryor. The official says the president has also been considering Diane Sykes, one of his early favorites for the high court seat.

[UPDATE: ABC reporter Jonathan Karl tweeted Sunday afternoon that the White House is preparing for a nomination announcement “likely Tues[day], possibly tomorrow.” He also tweeted that a senior administration official told him Trump’s short list was down to Gorsuch and Hardiman.

CNN confirms and adds (emphasis mine, hyperlinks omitted):

President Donald Trump has settled on his first Supreme Court nominee and is poised to reveal his selection early this week, two officials say, in an announcement that many inside the White House hope could change the subject from a weekend of thundering criticism over the executive order on immigration.

* * *

“Our world changes constantly but there is a very good chance we are announcing early this week unless (President Trump) changes his mind about who,” a senior adviser told CNN.

* * *

Hardiman emerged as the leading contender, two people close to the process said, but they cautioned that Trump could still change his mind and deliver a surprise.]

Also today, Joel Gerhrke reports in the Washington Examiner that an anonymous source revealed President Trump’s assessment of Judge Hardiman:

“‘He’s probably the most conservative judge that can get confirmed,'” a well-placed source familiar with the deliberations quoted Trump as saying in a private meeting.

Yesterday Sari Horwitz had this profile of Judge Hardiman. Among those quoted discussing Hardiman is Chip Becker:

“As a judge, he’s thoughtful, decent and tries hard to stay true to the contours of the law and facts when reaching a decision,” said Charles “Chip” Becker, a partner at Kline & Specter in Philadelphia and president of the Third Circuit Bar Association who has argued before Hardiman several times. “Personally, he’s warm, friendly and funny.”

Becker points to Hardiman’s opinion in the case Florence v. Board of Chosen Freeholders , a challenge to the strip-search policy in a New Jersey jail, to emphasize that Hardiman is known for seeing “the varying sides of an issue.”

Also yesterday, Ariane de Vogue had this Hardiman profile on, headlined, “Thomas Hardiman, the non-Ivy League Supreme Court candidate.”

And on Friday, arch-conservative blogger Paul Mirengoff had this post, entitled, “What to Make of Trump’s Sister’s Praise for Potential Supreme Nominee.” He concludes (correctly, in my view) that Judge Barry’s reported support for Hardiman sheds little light on how conservative he is. And, to his credit, Mirengoff now says he was wrong to call one of Barry’s opinions “obscenely pro-abortion,” admitting he “went too far” (and, to my astonishment, hyperlinking his “too far” admission to this blog’s criticism of his statement).

Finally, David Savage had this fine Hardiman profile in Friday’s Los Angeles Times, describing him as “a conservative jurist from Pittsburgh with a personal story not unlike many of the blue-collar voters who catapulted Trump to the White House.”


Law professor bashes Third Circuit’s Castro decision and calls Hardiman’s vote “close to being disqualifying”

Professor Steve Vladeck posted this today at the Just Security blog, entitled, “The Muslim Ban, Judicial Review, and the Supreme Court.” Here it is, quoted nearly in full:

There’s so much to say about the Executive Order on immigration issued on Friday by President Trump. * * *

Needless to say, judicial review has already played an enormous role here–and could play an even bigger role going forward. And each of the courts to act on the Executive Order thus far have assumed that the non-citizens at issue have a right to the very judicial review they are invoking. But at least in the Third Circuit, that’s not at all clear–thanks to that court’s deeply troubling ruling last August in Castro v. Department of Homeland Security.

In a nutshell, Castro held that non-citizens physically but not lawfully present on U.S. soil are not protected by the Constitution’s Suspension Clause–meaning that they have no constitutional right to judicial review, even if their detention and/or removal from the country is clearly unlawful. In reaching this holding, the Third Circuit made two massive analytical leaps (and errors), both of which I documented at length in a longer post from August. First, the Court of Appeals held that the so-called “entry fiction,” under which the Supreme Court treats arriving non-citizens literally stopped at the border as if they are not technically on U.S. soil for purposes of the applicability (or not) of certain constitutional protections, extends to non-citizens living in the United States who do not have lawful immigration status. The Supreme Court has never embraced this extension, and indeed, has handed down several decisions recognizing at least some constitutional protections for such individuals–and for good reason. Second, even assuming the “entry fiction” extends to non-citizens physically but not lawfully present in the United States, the Third Circuit held that non-citizens in such status have no entitlement to judicial review under the Suspension Clause, even though the Supreme Court has never suggested that the Suspension Clause (as opposed to, e.g., the Due Process Clause) doesn’t apply “at the border,” and, indeed, has expressly applied the Suspension Clause to non-citizens detained at Guantánamo–who, obviously, have even less of an entitlement to constitutional protection than folks physically detained on sovereign U.S. territory.

My post from last August offers longer analysis of why this reasoning is so problematic. And a petition for certiorari in the Supreme Court is already pending in Castro (with the government’s response due on February 27). I wanted to re-up this issue this morning, though, for two different reasons:

First, it is now so much more important for the Supreme Court to grant certiorari in Castro–and reverse the Third Circuit. * * * [U]nder Castro, the Executive Branch’s actions could theoretically be immune from such review, at least in Pennsylvania, New Jersey, and Delaware (okay, and in the U.S. Virgin Islands, too).

Second, with President Trump due later this week to announce his nominee for the Supreme Court seat vacated by Justice Scalia’s death, it is worth emphasizing that one of the judges on the rumored short-list–Judge Thomas Hardiman–was part of the Third Circuit’s ruling in Castro, and, indeed, joined the majority opinion “in full.” (He wrote separately to suggest a different ground on which to deny access to judicial review to the petitioners.) In my view, at least, endorsing such a doctrinally flawed, analytically problematic, and poorly reasoned opinion on such a major constitutional question comes close to being disqualifying in its own right. But at the very least, it should provoke questions from the Senate Judiciary Committee for Judge Hardiman (or any nominee, for that matter) about the proper role of the courts in supervising detention within the United States–and in standing up to Executive Branch actions that, at least based on precedent, certainly seem to be unconstitutional.

After all, if the past 36 hours are any indication, we’re going to need such judicial review quite a lot in the coming weeks, months, and <gulp> years.

Given this weekend’s dramatic developments, I’ll be surprised if Castro — authored by Chief Judge Smith and also joined by Judge Shwartz — doesn’t become a part of the public discussion about the impending nomination.

My prior posts on Castro are here and here.

“Penn State Law student lands dream-come-true federal clerkship”

The headline of this post is from a news item on Penn State News, link here, featuring Tom Brier, an upcoming clerk for Judge Thomas Vanaskie. It is surely the least cynical thing you will read all day, as this quote illustrates:

“In a lot of ways, this is the culmination of everything I worked for since I first met Judge Vanaskie,” Brier said. “To be here now, I definitely have butterflies, almost like before a basketball game in college, but I’m also incredibly excited at the same time.”

Judge Vanaskie is quoted too. Happy Friday.

UPDATE: Penn Law also released some upcoming-clerks news today: both winners of the school’s Keedy Cup moot court competition will be clerking for Third Circuit judges. Congratulations to Andrew D’Aversa (Scirica) and Aaseesh Polavarapu (Chagares). And one of the competition’s judges this year was Judge Patty Shwartz.

Is the Federalist Society backing Gorsuch over Hardiman? [updated]

Crunch time is here, and Judge Thomas Hardiman is finding out who his friends are. Unless I’m very mistaken, he’s just found out who a prominent conservative opponent of his nomination is, too.

Last night, Jennifer Hansler wrote this ABC News story, headlined “Trump Supreme Court Adviser Praises Judge Neil Gorsuch as Potential Heir to Scalia’s Legacy,” featuring the following comments by Federalist Society leader Leonard Leo:

“He [Gorsuch] has very, very distinguished background,” Leo said. “He has probably 200 or so published opinions as an appeals clerk judge. They are extremely eloquently written, they’re incisive, understandable, clear, opinionated.”

The president values clarity and eloquence — qualities he admired in the late Justice Antonin Scalia — in his potential nominees, according to Leo.

“If you want to move the country’s jurisprudence in the right direction, you need people who are clear in their thinking and in their writing and who are going to be in the position to educate the broader legal community and the public at large about what’s at stake in these cases,” he said.

Among other traits Trump wants in a potential justice: someone who is “extraordinarily talented,” who is “going to be respected by all” and “who’s going to stick to his guns.”

Hardiman is nowhere mentioned. That alone is telling. But I read the substance of Leo’s comments, with their focus on eloquence and clarity and extraordinary talent, as a concerted effort to help Gorsuch’s prospects and hurt Hardiman’s [that is, to help Gorsuch’s prospects of being chosen over Hardiman].

If you thought Hardiman’s own long Federalist Society track record would keep its leaders at least neutral now, I’d say you were mistaken.

UPDATE: Two days after this post, on Saturday, Leo praised Hardiman to CNN:

“Tom Hardiman is an interesting mix of two worlds,” said Leonard Leo, an adviser to Trump on the Supreme Court search. “On the one hand he is very much in the mold of Justice Scalia, well-schooled on the doctrines of originalism and textualism, and he is very experienced. And yet, at the same time, Judge Hardiman hails from a family of relatively modest means, from an industrial working class city in Western Pennsylvania.”


A Politico story on Barry’s input on Trump’s nomination decision

Politico posted this story by Shane Goldmacher last night, entitled, “Trump’s sister weighs in on Supreme Court pick.” The story quotes one anonymous presidential advisor who said Judge Maryanne Trump Barry is “high on” Judge Thomas Hardiman and another who said it wouldn’t be fair to say that Barry is the only reason Hardiman has “juice on the list.” Neither fact is at all surprising.

From those quotes, Politico characterizes Barry as “a quiet but influential ally” of Hardiman’s nomination and mentions “the idea” that Barry “is among the president’s judicial counselors.” Neither characterization is clearly supported by the facts reported in the story.

I’m also quoted in the story. What I meant to give the reporter were boring observations that any two judges on the court work together regularly and that, if Judge Barry were supportive of Judge Hardiman then that could help explain why he’s apparently a finalist. I have no personal knowledge about Judge Barry’s role here or her view of Judge Hardiman, and I regret if my inartful quotes could be read to suggest otherwise.

In my view, there’s nothing remarkable about Trump soliciting Barry’s feedback about a judge sitting on the same court she does. Speaking with any of a judge’s colleagues should be a routine part of Supreme Court vetting. And it’s hardly a shock if Barry thinks highly of Hardiman, no doubt many judges do.

It’s all interesting to Third Circuit nerds, but I don’t think it’s big news. As Carrie Severino of Judicial Network says in the story, “If she wants to throw in ‘Tom Hardiman is a wonderful colleague,’ fine.”

Here’s why I think Hardiman is more likely than Gorsuch to be Trump’s Supreme Court nominee

The news coverage over the past 24 hours has annointed Tenth Circuit Judge Neil Gorsuch as the favorite to be nominated for the Supreme Court by President Trump. I’m skeptical.

Gorsuch is the walking embodiment of the mainline GOP legal establishment: D.C. politico parent, Harvard Law, Scotus clerkship, fancy firm, Justice Department, feeder judge, dazzling writing. When Trump looks at Gorsuch, I think he sees John Roberts and Brett Kavanaugh and Merrick Garland.

I think he sees the guy Jeb Bush would beg him to choose.

Jeff Sessions, Sean Spicer, Steve Bannon, Jared Kushner, Linda freaking McMahon — every one of them is a Johnny Cash middle finger to establishment D.C. Republicans. And now he’s going to pick their darling for the Supreme Court? Anything’s possible, but it seems unlikely to me.

Judge Thomas Hardiman fits Trump’s core us-against-them political narrative in a way Gorsuch never can. The Supreme Court is filled with Ivy League grads and glittering resumes. Hardiman? Just ability and rock-solid conservatism. No Oxford, no Ivy League law degree, no clerkship, no prestigious stable of Scotus clerks, and no rhetorical flash. President Jeb might never have given him a second look: perfect.

The mainstream media all seem to think Gorsuch is the front-runner today. But if the choice really does come down to Gorsuch or Hardiman, I’m betting on Hardiman.

Trump reportedly sought input from Barry on Supreme Court choice

Jess Bravin’s story posted tonight in the Wall Street Journal offers the first confirmation I’ve seen that Third Circuit Judge Maryann Trump Barry had a role in selecting President Trump’s Supreme Court nominee:

During his campaign, Mr. Trump turned to leaders of conservative organizations such as the Heritage Foundation and the Federalist Society to compile a list that ultimately numbered 21 candidates, including federal judges, state supreme court justices, and a U.S. senator. Since winning the election, he has continued to consult with leaders of those groups, and also sought advice from his sister, Judge Maryanne Trump Barry of the Third U.S. Circuit Court of Appeals in Philadelphia, the people close to the process said.

Hardiman is one of the two Scotus front-runners … or he isn’t

Politico reports:

President Donald Trump has narrowed his first Supreme Court nomination to three finalists, with 10th Circuit judge Neil Gorsuch and 3rd Circuit judge Thomas Hardiman emerging as front-runners while 11th Circuit Judge Bill Pryor remains in the running but fading, according to people familiar with the search process.

A Federalist Society leader approves:

“Under our Constitution, the power rests with the people, and that was at the core of Justice Scalia’s legacy, and you heard from President Trump’s inauguration that is the core of Trump’s agenda, and that’s very much the core of what Neil Gorsuch’s record is as a jurist,” Leo said. “He’s an excellent writer. He’s got sharp analytical ability, strong intellect and he’s got a lot of strength and courage. Those are things that the president very much wants in a nominee.”

“Hardiman,” Leo added, “shares many of the same qualities.”

Leo went on to say that Hardiman is “an extraordinarily talented and smart jurist” who has “a very direct and understandable writing style.”

Then there’s this:

As Gorsuch’s fortunes have risen, Pryor’s have dimmed. A 2006 George W. Bush appointee, Pryor is currently the subject of raging debate on an off-the-record group email list that includes many in the conservative legal and political communities, including many Republican Senate staffers, thanks to his decision to join the majority in Glenn v. Brumby, a 2011 opinion that protected transgender people from workplace discrimination.

“I think everybody on this list probably has something I’m not going to agree with. I think that decision with Pryor probably would be the one that would fall into that category,” said Carrie Severino, chief counsel and policy director of the Judicial Crisis Network, a conservative legal organization.

John Malcolm, who oversees a legal center inside the Heritage Foundation, acknowledged that “Bill Pryor has been getting attacked from the right. Which is strange to me.”

Strange? Try bananarama.

Meanwhile, Adam Liptak of New York Times is reporting that Trump’s “2 Supreme Court Choices” don’t include Hardiman, naming Gorsuch and Pryor “The two leading contenders.” But then later in the story, which doesn’t even mention Hardiman:

The two were described as among the leading contenders by an administration official who spoke on the condition of anonymity to discuss internal White House planning.

Fun fact: a photo accompanying the NYT story shows Judge Gorsuch taking an oath, and the judge in the background of the photo is the wonderful Tenth Circuit judge I clerked for, David M. Ebel.

So either he is, or he isn’t.

UPDATE: There’s a heck of a barroom brawl going on among leading conservatives over whether Gorsuch is conservative enough. Here’s one side, Ed Whelan on National Review, with links to his adversary.

UPDATE 2: The New York Times story has been updated and now refers to three leading contenders including Hardiman, but still asserts that Gorsuch and Pryor “appear to be the most likely choices” contrary to what many other outlets are reporting about Pryor’s dimming prospects.

“This is the federal appellate court where Trump’s appointees could have the most immediate impact”

I’ve analyzed President’s Trump’s ability to impact the composition of the Third Circuit here and here. I wrote, “My best guess is that by 2018 the Third Circuit has 7 GOP-nominated judges and 7 Dem-nominated judges and that overall the court will be significantly more conservative-leaning than it is now.”

On Friday, Jonathan Adler posted this analysis on Volokh Conspiracy, headlined, “How President Trump will shape the federal courts.” He writes (emphasis added):

On the U.S. Circuit Courts of Appeal, there are currently 17 vacancies, with two more to come in February. Trump’s nominations for these spots will be significant, but they will not do much to alter the ideological balance on individual courts. Other than the U.S. Courts of Appeals for the 2nd and 3rd Circuits, Trump’s initial nominees will either expand Republican-appointed majorities or modestly bolster Republican-appointed minorities.

* * *

Third Circuit: Two vacancies. A third vacancy will be created on Feb. 1 when Judge D. Michael Fisher takes senior status. This is the federal appellate court where Trump’s appointees could have the most immediate impact. Among sitting judges there are seven Democratic nominees and five Republican nominees (including Fisher). If Trump is able to fill these vacancies, the 3rd Circuit will have an equal number of Democratic and Republican nominees.

So Adler’s math looks a lot like mine.

He also offers this interesting take (and reiterates it here):

For what it’s worth, I expect that the rate at which judges retire or take senior status will be affected by the caliber and qualifications of Trump’s initial judicial nominees. That is, sitting judges will feel more comfortable taking senior status and creating new vacancies if they feel confident that they will be replaced by qualified nominees. This may be particularly true for Republican appointees on the bench, insofar as we assume that judges prefer to be replaced by a president of the same party that appointed  them, but I expect the qualifications of Trump’s nominees will influence the decisions of Democratic appointees as well.

Hardiman reportedly a Trump finalist for Supreme Court nomination: news roundup [updated]

Multiple news outlets, including CBS News legal correspondent Jan Crawford, are reporting that President Trump has narrowed his search for a Supreme Court nominee to three or four candidates, one of them Third Circuit Judge Thomas Hardiman.

Naturally this has led to another flurry [make that a torrent] of Hardiman profiles.

The most substantive of them is by Amy Howe on Scotusblog, link here, and it warrants reading in full. She concludes that Hardiman is a “solid, although hardly knee-jerk, conservative who was active in Republican politics before joining the federal bench,” and notes, “During his nearly ten years as a federal appeals court judge, Hardiman has weighed in on a variety of hot-button topics important to Republicans, and his votes in these cases have consistently been conservative,” although some of his rulings are “harder to pigeonhole.” Beyond analyzing his decisions, Howe also sheds some new biographical light:

Hardiman’s wife Lori, with whom he has three children, is from a well-connected Democratic family in Pennsylvania, but Hardiman registered to vote as a Republican in 1994. Hardiman has headed the local Big Brothers Big Sisters program, and he has also served as a “Big Brother” himself. A 2003 article in the Pittsburgh City Paper raised questions about Hardiman’s role in defending a challenge to a Ten Commandments plaque on public property, as well as his role in opposing housing discrimination cases. Hardiman is a fluent Spanish speaker who studied in Mexico; while living in Washington he worked with Ayuda, a legal aid clinic representing poor Spanish-speaking immigrants, on (among others) domestic violence and political asylum cases. During his Senate confirmation hearings, he described one of his immigration cases for Ayuda as “one of the most important cases I have ever handled.”

Meanwhile, CNN’s Ariane de Vogue writes:

Hardiman of the 3rd Circuit Court of Appeals, for example, is almost a decade younger at 51 and offers Trump a compelling personal story.
Hardiman hails from a blue collar family in Massachusetts and was the first in his family to graduate from college, driving a cab to help pay his bills. Hardiman is not product of the Ivy League having attended Notre Dame and Georgetown.
Those close to him think that Trump might appreciate Hardiman’s dry wit and the fact that while he is persuasive he doesn’t take over a room.
Like Sykes, Hardiman referred to Heller several times in a dissent he penned in 2013 in a case concerning gun licenses.
The opposition of Hardiman has been relatively muted and Ian Millhiser of the progressive Think Progress has written that he is “one of the more ideologically enigmatic names on Trump’s list.” Such a sentiment could scare away conservatives who do not want a dark horse candidate.
Conservatives believe that George H.W. Bush missed an opportunity to shape the court when he named a relative unknown — David Souter — to the bench. Rather than helping create a conservative legacy, Souter became a reliable vote for the left. Some might question whether Hardiman has a robust enough record to scour and get Republicans excited.
If Trump needed a personal reference, however, he’d only need to reach out to his sister, Judge Maryanne Trump Barry, who sits on the same appellate bench.

I think any Souter comparison is preposterous.

On The Daily Beast, Jay Michaelson has a post entitled, Trump’s Final Supreme Court Candidates Are All Arch Conservatives,” and he says this about Hardiman:

Like Pryor and Sykes, Judge Thomas Hardiman has a very narrow view of civil liberties. He affirmed a holding that there is no constitutional right to video record police officers. He wrote an opinion (affirmed by the Supreme Court) affirming the strip-searching of all arrestees in jail, even those there for minor traffic offenses. He would have allowed a Pennsylvania school district to bar students from wearing a bracelet saying “I ♥ Boobies” to raise awareness about breast cancer.

Still, compared with Pryor at least, Hardiman is a more conventional pick insofar as he hasn’t said outrageous things about hot-button social issues. Instead, progressives have had to read between the lines: Hardiman has spoken at several events hosted by the conservative Federalist Society, for example. Conservatives seem to love him.

In one high-profile case, he sided with the NFL over players who had not yet developed brain damage, but who wanted to be included in the NFL’s settlement in case they did later – but that case was about an actual football, not a political one.

Hardiman is thus a safer pick, if only because he has less of a record.

(The “seem to love him” link goes to one of my earlier posts about conservative reactions to Hardiman’s inclusion on the original shortlist.) Michaelson also writes:

[I]f there’s an endgame here, other than the nuclear option of eliminating the filibuster altogether, it will have to involve a consensus pick, someone in the mode of Anthony Kennedy or David Souter—a moderate Republican whose position on abortion (in many people’s minds, the only issue the Supreme Court faces) is unknown, but whose track record is reliably conservative without being extreme.

None of the five current candidates fit that bill.

‘Reliably conservative without being extreme,’ largely unknown position on abortion: that sure sounds like Hardiman to me.

White House press secretary Sean Spicer said yesterday that Trump would have “an update on a nominee” in “the next week or so.”

UPDATE: Josh Gerstein just added another take on Gorsuch, Pryor, and Hardiman at Politico, here.

UPDATE 2: just posted this Hardiman profile by Chris Mondics and Mari Schaefer, quoting two prominent Schnader lawyers:

“I know him to be a very smart, hardworking, diligent judge,” said Nancy Winkelman, an appellate lawyer at Schnader Harrison Segal & Lewis.

Hardiman, a graduate of Notre Dame University and the Georgetown University Law Center, came from humble beginnings. Originally from Massachusetts, his father was a cab driver, and Hardiman also drove a cab to help pay for law school. He was the first person in his family to attend college.

After law school he worked for a short time at mega firm Skadden Arps before moving to Pittsburgh, where his wife is from. There he joined the firm of Reed Smith, another globe-straddling firm that specializes in representing corporate clients.

Paul Titus, a Pittsburgh-based lawyer for Schnader Harrison, long time friend of Hardiman’s and a former colleague, said Hardiman did substantial amounts of pro bono work while he was in private practice.

“If you look among circuit judges who are Republican in their 40s and 50s, it’s not surprising that his name would come up,” Titus said. “He is a very intelligent, careful and thoughtful lawyer. A very decent person.”

UPDATE 3: coverage of the nomination endgame is intensifying: Above the Law (another dazzling Lat effort), Wall Street Journal, Washington Post, Bloomberg, and Pittsburgh Post-Gazette (also excellent). H/t How Appealing. The latest stories say Raymond Kethledge is still in the hunt while Pryor continues to fade. Lat writes:

Who has the edge as between Judge Gorsuch and Judge Hardiman? That’s tough to tell based just on their records, and it will probably come down to how much they connected personally with the Donald.

Sounds right to me. [On second thought I think Gorsuch isn’t as likely as everyone thinks.]

Judge Jordan speaks on the administrative state

Third Circuit Judge Kent Jordan spoke this week at a program at the National Constitution Center as part of a panel on the Constitution and the Administrative State. Video of the panel is available on Youtube at this link. His fellow panelist is Ninth Circuit Judge William Fletcher, and it’s an interesting and often dazzling dialogue.

And provocative! After observing that “something has gone off the rails here in terms of the structure of government,” Judge Jordan dropped this at the 12:02 mark: “Well, the first thing I would do is politely escort Chevron to the door and say, ‘it’s been knowing you, don’t come back.'”

H/t Ilya Somin on Volokh Conspiracy.

Hardiman reportedly one of handful of judges Trump is actively considering for Supreme Court seat

Two news outlets are reporting that Third Circuit Judge Thomas Hardiman is being actively considered by President-elect Donald Trump for nomination to the Supreme Court. I tend to think he is a longshot, only because his record seems less rigidly conservative and less aggressively ideological than those of the other leading candidates I’ve seen. But I hope I’m wrong about that, and it’s exciting to see a Third Circuit judge getting the attention that he — and the court as a whole — deserve.

Josh Gerstein of Politico reported today that Trump’s transition team has identified Hardiman as one of “about eight” who are leading contenders for the nomination.

This echoes comments by CBS chief legal correspondent Jan Crawford on Face the Nation on December 25:

CRAWFORD: Well, you know, Trump released a list before the election of — of potential nominees that he would consider. And my sources say he is sticking to that list. They have narrowed it down to just a handful of highly qualified, very respective — respected appellate court judges. I mean these are conservative legal rock stars. I mean this is not going to be a battle over qualifications. This will be a battle over ideology.

DICKERSON: Any top names — not to play this ridiculous game, but I’ll start it there (ph).

CRAWFORD: Yes. Yes. Yes, I mean I think — no, no, no, because this is ongoing right now. This is something, to Major’s point, they are going to move quickly on this. They’re — they’re narrowing their focus on a handful, like I said, of appellate court judges. Bill Pryor from the Atlanta based Federal Appeals Court. Thomas Hardiman, a judge on the Philadelphia based Appeals Court. Steve Colloton, from out in Iowa upon the U.S. Court of Appeals, the Eighth Circuit. A judge, Diane Sykes, on the Seventh Circuit. And Joan Larsen, on the Michigan Supreme Court. But, again, all highly qualified. You — you can’t argue with their credentials.

As I’ve written here and been quoted saying in a recent Hardiman media profile, I agree that Hardiman is a respected, qualified “conservative legal rock star[].”

Gerstein’s Politico article includes brief descriptions of each of the eight nominees named. For Hardiman, he writes:

Thomas Hardiman, 51
Judge, 3rd Circuit Court of Appeals

Hardiman spent about three years as a federal judge in Pittsburgh before being nominated to the 3rd Circuit in 2006. He’s one of the lesser-known judges still believed to be in active consideration for Trump’s first Supreme Court pick.

A 2007 ruling Hardiman wrote upheld the constitutionality strip searches of jail prisoners regardless of how minor an offense they were accused of. The Supreme Court later endorsed his decision, 5-4.

While Hardiman has backed First Amendment rights in the context of political donations, he took a narrower view in a 2010 suit over an arrest for videotaping a police officer during a traffic stop, holding that there was no clearly established First Amendment right to record such an event.

Hardiman won favor with gun rights advocates for a 2013 dissent that said New Jersey was violating the Second Amendment to the Constitution by requiring those seeking to carry a handgun to demonstrate a “justifiable need” for such a permit.

Trump may be able to get some special insights into Hardiman, since the president-elect’s sister, Judge Maryanne Trump Barry, serves on the same appeals court. Hardiman graduated from Notre Dame and went to law school at Georgetown. His fans have noted that he drove a taxi to support himself while earning his law degree.

As an aside, Hardiman’s fellow short-lister Joan Larsen was my wife’s con law professor at Michigan. Suffice to say she wasn’t my wife’s all-time favorite law professor.

A hat tip to Howard Bashman’s How Appealing for both reports.

Will the Third Circuit start posting oral-argument video? Highlights from the Third Circuit’s Judges and Journalists program

Yesterday the Third Circuit hosted a day-long dialogue in Philadelphia about media coverage of the federal courts called Judges and Journalists. I was there all day and had the honor of presenting on one of the panels. It was a fantastic event.

The judicial turnout was strong. Chief Judge Smith and Judges Krause and Roth were there all day, and Judges McKee and Chagares were there too, along with a bevy of district-court and state-court judges. (I sat next to a judge who worked on a David Bowie sewing project all morning.)

Oral argument video

The Ninth Circuit posts videos of its oral arguments on youtube. Yesterday an attendee asked why the Third Circuit doesn’t do that, too. Chief Judge Smith responded, “Stay tuned.” Pressed by the moderator what that meant, the Chief gave a friendly no-comment. I then pointed out that the Third Circuit website already makes it easy to access audio of oral arguments. Chief Judge Smith responded, “Thank you, Matthew — but stay tuned.” Make of that what you will.

Linda Greenhouse’s keynote

New York Times legal columnist Linda Greenhouse gave the lunchtime keynote, introduced by Chief Judge Smith who described her as “truly a major figure in the law.” Her theme: judges and journalists are “in the same serious business,” both doing their best to make sure the public has an understanding of the law. When the courts and media find ways to work together in this common enterprise, she said, “everybody wins.”

Greenhouse described a Ninth Circuit judge’s shock when he learned that she’d had lunch with Justice Breyer; she said she decided to shock him some more by telling him Breyer had the Supreme Court press to lunch every year. And Chief Justice Burger held regular lunches with the Supreme Court reporters, a practice that Chief Justices Rehnquist and Roberts continued. The lunches are nuts-and-bolts conversations about what reporters need, what is the best thing the Court could do for them, etc. Greenhouse said that two recent changes — identifying individual Justices in the argument transcripts, and posting those transcripts the same day as the argument — both resulted from those lunches.

No surprise: Greenhouse is an avid How Appealing reader. When I was introduced to her before her talk as the author of this blog, she said to me something to the effect of, “Oh, yes. That’s one that Howard Bashman frequently links to, isn’t it?”

Some other highlights

  • Both Chief Judge Smith and Judge McKee expressed dismay at how circuit judges are painted as political partisans. Smith (who described himself as a “news junkie”) said a pet peeve of his was when articles identify which judges were nominated by Democratic or Republican presidents, which he said serves only to imply that the decision was ideologically or politically driven. Smith said McKee was one of his very best friends, and he noted they agree on 95 percent of their cases.
  • Smith and McKee (both former trial judges) also agree about how hard criminal sentencing is. McKee said its the “hardest thing judges do and number two is not even close.” Smith noted that people say ‘lock ’em up and throw away the key,’ but “people have no idea how really difficult sentencing is,” and there is “no more excruciating experience than sentencing a person.”
  • New York Times assistant general counsel David McCraw discussed his recent viral letter responding to Donald Trump’s threat to sue the Times for libel for reporting two women’s accusations that Trump had touched them sexually without their consent. He said his career flashed before his eyes when he saw the Times’s CEO coming for him just after the letter was published, but the (British) CEO just said, “Brilliant, brilliant. But I’ll never understand why you Americans capitalize after colons.” He also movingly described a letter he received from Martin Luther King Jr.’s lawyer on how much it meant for the Times to stand up, then and now.

Congratulations to the main organizers — Judges Krause and Rendell, Circuit Executive Margaret Wiegand, and Chris Satullo — for a first-rate event.

“Trump’s Federal Judges in Pa. May Break With Centrist Tradition”

The title of this post is the headline of an article by P.J. D’Annunzio in Thursday’s Legal Intelligencer. It includes this none-too-controversial observation: “Observers speculate that Trump will appoint more conservative judges—especially in the U.S. Court of Appeals for the Third Circuit—than his predecessor, President Barack Obama….”

The article notes that Pa. Senator Toomey is “especially unlikely to budge” on Rebecca Haywood’s nomination, and it features an interesting look at whether the blue-slip power will give fellow Pa. Senator Casey some leverage over Trump’s Third Circuit nominations. (I tilted at both of these windmills earlier this week.)

Well worth a read.

Morning Call profile of Judge Hardiman

Peter Hall of the Allentown Morning Call has this article profiling Third Circuit Judge Thomas Hardiman. It’s a fine article with an odd headline, “Trump judge sided with Easton school district in ‘boobies’ case.” Of course, ‘Trump judge’ refers to the fact that Hardiman was one of 21 judges President-elect Donald Trump listed as possible Supreme Court nominees.

The article quotes former Hardiman clerk Richard Heppner (now an associate in the appellate group at Reed Smith), who described the judge as friendly, thoughtful, and pleasant, and who described how the judge encouraged his clerks to go jogging with him.

It also quotes Howard Bashman observing that, while Hardiman would be a good conservative choice for the Supreme Court, two facts weigh against him: he’s not a state judge and he serves on the same court that Justice Alito came from. By contrast, I’m quoted saying Judge Hardiman is “exactly the kind of judge conservatives are looking for for the Supreme Court.” It’s a safe bet that Bashman’s closer to the mark.


The Senate should confirm Obama’s Third Circuit nominee. No, really.

Elections have consequences. Presidents get to pick the judicial nominees, and if they’re qualified it’s the Senate’s job to confirm them. I’ve hammered Republicans over this many times here. When Senators block qualified, mainstream, honorable judicial nominees, it hobbles our courts and it poisons our democracy.

Donald Trump won. The Third Circuit, like federal courts around the country, has vacant judgeships it urgently needs filled. If Trump chooses to fill those empty seats with staunch conservatives, he can.

For our government to work right, Democratic senators should not use their blue-slip power to block qualified conservative circuit nominees, they shouldn’t launch overheated public campaigns attacking them, and they should not vote against confirming them. And qualified doesn’t mean centrist.

Senate Democrats should do for Trump what they did for the second President Bush: confirm Third Circuit nominees who are rock-solid conservatives. The Senate confirmed Judge Hardiman by a vote of 95-0. It confirmed Judge Jordan 91-0. It confirmed Judge Chagares 98-0. It confirmed Judge Fisher, a recent Republican candidate for governor, by unanimous voice vote. After Fisher’s confirmation, liberal then-Governor Ed Rendell said, “This is the way the process should work. It wasn’t viewed as a partisan thing. It was viewed as getting a very qualified person onto a very important court.”

That is how it’s supposed to work, and it’s how it should work over the next four years, too. Many think Trump is uniquely unfit to be president (and I do too), but that is quite irrelevant to whether his judicial nominees are qualified.

But here’s the problem.

Senate Republicans have spent the past two years breaking those rules, blocking President Obama’s qualified judicial nominees to a historic degree. As Russell Wheeler of Brookings has painstakingly documented here and here, Senate Republicans “veered from the precedents created by recent similarly situated Senates.”

Here in the Third Circuit, that meant Judge Sloviter’s seat took two and a half years to fill. Worse, Judge Rendell’s seat has sat empty since July 2015 and Judge Fuentes’s seat since July of this year. Those were President Obama’s judgeships to fill.

So what do Senate Democrats do now? If they play by rules the Republicans spent the last two years thumbing their noses at, wouldn’t Democrats be unilaterally disarming? Of course they would. Pragmatic Democratic leaders will say Republicans changed the rules, so now we’ll play by their rules. Any other approach would make them chumps.

So Democrats will do all they can to continue the obstruction, and our judiciary and our democracy are weakened some more.

There’s a solution. If Republicans want Democrats to play by the old rules for the next four years — and they should — then Republicans should hurry up and play by the old rules now.

For the Third Circuit, that means Senate Republicans should confirm Rebecca Haywood now. She’s an exceptional lawyer and superbly qualified. I’ve seen nothing to suggest she’s even particularly liberal — as a career Assistant US Attorney, she’d likely slot into the court’s moderate center alongside Chief Judge Smith and Judges Greenaway, Vanaskie, and Shwartz. And confirming her would still leave an open seat for Trump to fill, with another (Judge Fisher’s) likely soon to come. Maybe more.

Confirm Haywood now, and other qualified nominees like her, and then fill the courts with qualified Trump nominees in the years ahead. Following the rules now would benefit the federal courts, the nation — and Republicans.

What the 2016 presidential election means for the Third Circuit: take two

Back in September I wrote:

With this post, I want to focus on what the election means for the composition of the Third Circuit.

The Third Circuit has 14 seats and currently has two openings: Judge Rendell’s seat since last summer, and Judge Fuentes’s seat since July. President Obama nominated Rebecca Haywood for the Rendell seat back in March, but that nomination appears stalled. Obama has not nominated anyone for the Fuentes seat yet.

In addition, the court currently has three judges who are eligible to assume senior status and thus create new openings: Chief Judge McKee and Judges Ambro and Fisher. McKee is 69 and his term as chief will end next month. Ambro is 66. Fisher is 71 and has been eligible to go senior since the first year of Obama’s presidency [CORRECTION: he became eligible in 2014]. A fourth, Judge Vanaskie, will become eligible to go senior during the next president’s first term. (So will Judge Smith, but he will become Chief instead.)

So there’s a realistic chance that the next president will get to fill 6 of 14 Third Circuit seats in her or his first term.

Obviously it would be fewer if any of the eligible judges choose to remain active past 65 (which isn’t unusual). Or it could be more if any other active judges left the court. (The most exciting way that would happen is if a Third Circuit judge were elevated to the Supreme Court. Candidate Trump included Judge Hardiman on his Scotus-nominee list, and Scotusblog and I have both mentioned Judge Krause as a possible Democratic-president nominee.)

Now, what does all that mean for the composition of the court? Well, of the court’s current 12 active judges, 7 were nominated by Democratic presidents and 5 were nominated by Republicans. If all 4 eligible judges go senior in the next president’s first term with no other changes, that would leave 4 Dem nominees and 4 GOP nominees. If the next president fills 6 seats in her/his first term, that’s a 10-4 party majority either way.

But, as I’ve observed before, nominating party is a far-from-perfect proxy for the ideology of Third Circuit judges. One day I’ll do a full-blown update my analysis of en banc outcomes, but for now I’ll focus on one observation: the court’s en banc cases in recent years reflect a court that is very evenly divided ideologically. Of the 9 en banc decisions since 2010 that I consider more ideological, the conservative side has won 5 and the liberal side has won 4. This week’s 8-7 vote in the Biderup felon-gun-rights en banc underscores just how evenly the court is divided.

I’d expect the court’s ideological center of gravity to shift somewhat to the left if Clinton wins, or to shift substantially to the right if Trump wins. Trump’s likely impact would be bigger because three of the four judges eligible to go senior are liberal or moderate Dem appointees, as were both of the judges whose seats are already open.

Bottom line, the upcoming election is likely to have a real impact on the Third Circuit, and if Trump wins that impact will be yuuuge.

When I wrote all that, I expected Hillary Clinton to win the election. Now that Donald Trump has won, let’s take another look.

There are two open seats on the court. My guess is that Judge Fisher will now take senior status, which would create a third opening. It remains to be seen what Judges McKee and Ambro will do, but my guess is they will remain active. So I expect Trump to get three seats to fill right away.

What kind of judge will Trump nominate? His Supreme Court short-lists were pleasing to conservatives, so it’s a reasonable bet that his nominees will be in the mold of Justice Alito, but I don’t think anyone really knows.

It’s also is hard to say whether Democrats will have any meaningful leverage over who gets nominated or confirmed. The nuclear option did away with filibusters for circuit nominees. Democratic Senators (one in PA, two in NJ, two in DE) may keep their blue-slip power to block home-state nominations from going forward, but I don’t feel confident about that. [Update: Although the Senate Judiciary chair said last year he was committed to the blue-slip procedure.]

As I’ve noted, only two of the Third Circuit’s 13 active judges are women, the worst gender disparity of any circuit court. A Clinton presidency seemed certain to reduce that imbalance: a Trump presidency, much less so.

My best guess is that by 2018 the Third Circuit has 7 GOP-nominated judges and 7 Dem-nominated judges and that overall the court will be significantly more conservative-leaning than it is now.

“Voting Toomey? Consider His Judicial Obstructionism.”

The title of this post is the headline of an essay by law professor Carl Tobias posted Friday on The Hill. After criticizing Senator Toomey for the delay in confirming Judge L. Felipe Restrepo, Tobias writes:

Equally troubling was Toomey’s handling of another Third Circuit vacancy to which Obama nominated Rebecca Ross Haywood, an experienced federal prosecutor, who would be the first African American female Third Circuit judge, if confirmed. Toomey disagreed with Haywood’s answers to his questions in a March 2016 private meeting, and he has singlehandedly blocked her hearing since then.

He concludes:

When Pennsylvanians vote, they should remember Senator Toomey’s claim that he has kept the federal courts filled. However, Toomey actually has obstructed nominees at every level of the federal judiciary (Supreme Court, Third Circuit and Pennsylvania Western and Eastern Districts) and in all stages of the nomination and confirmation processes.

As of yesterday, gives Toomey a 33 percent chance of winning, describing him as “one of the most conservative senators in Congress, despite representing a state that tends to vote Democratic in presidential elections.”

More election drama headed towards Third Circuit (Pa. edition)

Michelle Bond has this story on, headlined, “Federal court asked to invalidate Pa. judge-retirement vote.”

The article begins:

Two former Supreme Court chief justices and a prominent Philadelphia lawyer are asking a federal court to declare a ballot question extending state judges’ retirement age unconstitutional and any votes cast on it invalid.

The complaint filed Thursday in U.S. District Court by former Supreme Court Chief Justices Ronald D. Castille and Stephen Zappala Sr. and Philadelphia attorney Richard A. Sprague also asks for an injunction to prevent the tally of votes on the ballot question. It comes less than two weeks until voters are to decide whether to raise the retirement age of state judges from 70, to 75.

I bet I’m not the only one who finds it ironic to see Castille turning to the federal courts.

Empirical Scotus thinks Krause is a “Top Choice” for Clinton Supreme Court pick

Adam Feldman had this post on Empirical Scotus earlier this week, entitled, “Narrowing Down Clinton’s Choices for Supreme Court Nominee.” (H/T How Appealing). The most interesting point for Third Circuit enthusiasts is that Feldman names Judge Cheryl Ann Krause as one of top five choices for a Supreme Court nomination by Hillary Clinton.

(Back in February I reached a similar conclusion. I brag in parentheses.)

Judge Hardiman is not a “radical-right” judge: another sound-bite cheap shot at a Third Circuit judge

Critiquing appellate judges accurately is hard work. They decide cases in panels, not individually, and most of the cases they decide are dulls-ville to the general public. Dramatic insights into ability and ideology are few and far between.

But earlier in the election cycle, conservatives tried to score a political point against Donald Trump by painting Third Circuit Judge Maryanne Trump Barry as a radical pro-abortion extremist. It was a pathetic effort, egged on by people who surely knew better.

Now, it’s liberals’ turn to try to score a point against Trump by smearing judges, and this time the Third Circuit judge in the cross-hairs is Judge Thomas Hardiman.

Over the weekend, Huffington Post ran this essay by law professor Marjorie Cohn, entitled “The Threat of a Right-Wing Supreme Court: Analyzing Trump’s Prospective Judges.” The core premise of the piece is that the judges Trump has named as potential Supreme Court nominees are conservative (or, in the language quoted in the piece, “reflect a reflect a radical-right ideology that threatens fundamental rights and legal protections”).

Cohn tries to prove the judges’ radical-right wrongness by identifying conservative opinions written by each of the judges. For Judge Hardiman, she first notes his dissent in Drake v. Filko, arguing that the Second Amendment barred a state law that said you could only carry a handgun in public if you showed a justifiable need. Fair enough.

But then she writes:

Thomas Hardiman wrote two opinions allowing correctional officers to conduct strip searches of inmates accused of minor offenses.

The two cases she’s referring to are Florence v. Bd of Chosen Freeholders (2010), and Blaisure v. Susquehanna Co. (2015). The idea that these cases reveal Hardiman as a right-wing wingnut does not withstand scrutiny.

In Florence, Hardiman’s opinion was joined by Judge Sloviter. In Blaisure, he was joined by Chief Judge McKee and Judge Ambro. Are they all radical-right judges now, too?

And if Florence and Blaisure prove that Hardiman is so out-there, what about J.B. v. Fassnacht, which upheld strip searches for detained 12 year-olds? That ruling is vastly more troubling to me than either of Hardiman’s, and it was written by Clinton nominee Judge Julio Fuentes. Should progressives complain if a Republican nominated him to the Supreme Court?

With so many legitimate grounds to criticize Trump, why this? Sound-bite judge-bashing is lazy and poisonous, whether it’s done by conservatives or liberals.

Judge Hardiman will present at 2016 Federalist Society convention

Third Circuit Judge Thomas Hardiman will be a speaker at next month’s Federalist Society annual lawyer’s convention. The topic of the convention is “The Jurisprudence and Legacy of Justice Scalia.” Justices Thomas and Alito also will be speaking along with an impressive list of judges, lawyers, and and practitioners. Marcia Coyle has a National Law Journal story on the convention here.

Foolishly, the event’s webpage does not list Judge Hardiman among the five circuit judges (and one district judge and one state judge) named as “Speaker Highlights.”

McKee’s early end to Third Circuit chief judgeship: collegiality over partisanship? [updated after speaking to Judge McKee]

When Third Circuit Judge Theodore McKee stepped down from his role as Chief Judge on October 1, he ended his chief judgeship early. Judge McKee’s term as chief would have run through 2017.

What’s the actual reason he stepped down early? I don’t know. The court’s press release didn’t mention that he was giving up his role before his term was over, let alone say why. And I don’t have any inside information. But I’ve got a theory.

[UPDATE: After I posted this, Judge McKee confirmed that my theory about why he stepped down early was “exactly dead on.”]

First, some background. Circuit-chief-judgeship-selection procedure is set by statute, 28 USC § 45. To become chief, you have to be under 65; your term runs for 7 years or until you turn 70, whichever comes first. McKee became chief in 2010 and was born in 1947, so his term was set to end in 2017.

Did he end early due to health? Because he wanted to scale back? Because he’s tired of the extra administrative role? I’ve seen nothing to support any of those hypotheses. The court’s press release says he’s not going senior, and his recent creation of the eyewitness-identification task force shows how comfortable he still was wielding the chief’s power.

But McKee’s decision to step down in 2016 had this clear consequence: it allowed Chief Judge Brooks Smith to become chief. Smith turns 65 in December, so, if McKee had served out his term into 2017, Smith would have been too old to become chief. Judge Michael Chagares would have been next in line, instead.

An aside:  am I suggesting McKee gamed his retirement date to keep Chagares from succeeding him? No. Chagares will still be chief (assuming he remains on the court and wants to be chief). If Smith serves his full term, he will be chief until 2021 when he turns 70. In 2021 Chagares will be only 59, so he’d still be eligible to serve a full seven-year term.

So why did McKee step down early? My guess [now confirmed] is he did it simply so that Smith could have the honor of serving as circuit chief. Third Circuit collegiality, pure and simple.

Okay, so now let’s look at all this through a partisan lens. McKee’s decision to step down early is remarkable in this poisonously partisan era, and not just because he’s a liberal and Smith was nominated by President George W. Bush. Here’s how the circuit’s chief judgeship succession will now play out in the years ahead, assuming everyone stays on the court, serves as chief when eligible, and serves a full term:

2016 – 2021  Smith

2021 – 2028  Chagares

2028 – 2035  Hardiman

2035 – ?   [to be determined — no judge who’s currently on the court]

So Republican-nominated judges can be chief until 2035, and likely longer than that if the next president is Republican.

Now, look at how the succession would have played out (same assumptions as above) had McKee served out his term:

2017 – 2024  Chagares

2024 – 2031  Hardiman

2031 – 2038  Krause

A Dem-appointed judge would have taken over in 2031, regardless who wins this November. GOP-nominated judges would have been able to be circuit chief for ‘only’ 14 years, not 19-plus.

Now, that’s all pretty deep in the weeds, obviously, but it demonstrates a basic point: McKee’s decision to step down early didn’t just benefit Smith, it also benefits Republicans. I doubt Judge McKee gave a damn.

If I’m right about all this [and I am], it shows that, even in 2016, there are still leaders who choose collegiality over partisanship.

The Third Circuit has a new Chief Judge

The Hon. D. Brooks Smith is the new Chief Judge of the United States Court of Appeals for the Third Circuit. He officially succeeded Judge Theodore McKee this past Saturday, becoming the court’s thirteenth Chief Judge. By statute, he is eligible to serve as Chief until he turns 70 in 2021.

Welcome, Chief Judge Smith!

Third Circuit officially announces new Chief

The Third Circuit today posted a news release announcing that Judge Smith will succeed Chief Judge McKee as the court’s Chief Judge, link here. Not many press releases qualify as can’t-miss reading, but I recommend it.

Two highlights:

“The Third Circuit is fortunate to have at the helm a judge with Brooks Smith’s
demonstrated record of leadership. Judge Smith led the judiciary through a significant
courthouse space reduction plan while also helping us secure a major commitment from
Congress to replace aging court facilities around the country,” said James C. Duff, the Director
of the Administrative Office of the U.S. Courts.


Judge Smith said, “Ted McKee is not only my colleague; he is also my dear friend.
Following him as Chief Judge of the Third Circuit goes beyond what I would call a ‘daunting
challenge.’ I may be succeeding him, but there is no way I can take his place. I am fortunate
that he will continue on the court as an active judge, and as someone I will look to for advice and counsel.”


“Alito Recalls Garth as ‘Epitome of Dedication'”

The title of this post is the headline of a story by David Gialanella in today’s New Jersey Law Journal. One highlight:

As a jurist, Garth was “the epitome of dedication,” “extraordinarily fair” and “very, very open-minded,” Alito recalled. Even when the circuit’s practice of sua sponte taking a case for en banc review had fallen by the wayside, Garth “continued to read every opinion very carefully” before it was issued, according to Alito.

Garth’s greatest lesson, according to Alito, was to study the record to form a better understanding of why the below court reached the ruling it did.

Also, Garth clerk Orin Kerr posted a fond tribute on Volokh Conspiracy yesterday, including this:

Judge Garth was in both attitude and demeanor a model judge. He wanted to get every case right, no matter how obscure it was, and he did cases by the book. If you listen to Richard Posner, you’ll hear that judges reach decisions that seem sensible on pragmatic grounds and then reason backwards to get there. Not Judge Garth. He was obsessed over the record and the standard of review.

“Adjunct professor, alumnus appointed chief judge of 3rd U.S. Circuit Court”

The title of this post is the headline of a charming feature posted today on Penn State’s website on about-to-be-Chief Judge Smith.

Of particular interest to me:

Smith very much enjoys the case work he is involved in on the 3rd Circuit, and the processes of both studying a case and deciding a case. While he admits that the Court of Appeals process of deciding by three-judge panels is very different than that used by the District Courts, where a single judge makes the decision, he likes discussing the case with colleagues on the panel and finding common ground, as well as determining the right words for a judicial decision.

“The Court of Appeals is a constant intellectual challenge,” Smith said. “And the opportunity to teach has provided congruence between the study work of appellate cases and the pedagogy of a law professor. There are similarities in both positions.”

As for his legal legacy, he doesn’t give it much thought. He hopes his colleagues and the lawyers who appear before him view him as someone who decides each case based on its merits, and not on ideologies, politics or agenda.

“If they see me as motivated by proper concerns,” he stated, “I will be perfectly satisfied.”

Judge Garth died this week

Third Circuit Judge Leonard I. Garth passed away on Thursday. He was 95.

David Gialenella has this story in the New Jersey Law Journal, and the Rutgers website has this post.

In the Law Journal story, Chief Judge McKee is quoted describing Judge Garth as “absolutely tenacious,” and saying, “He was in many ways the conscience of the court, right up to his passing.”

UPDATE: Orin Kerr, a Garth clerk, has this warm tribute on Volokh Conspiracy, worth reading in full but featuring this:

Judge Garth was in both attitude and demeanor a model judge. He wanted to get every case right, no matter how obscure it was, and he did cases by the book. If you listen to Richard Posner, you’ll hear that judges reach decisions that seem sensible on pragmatic grounds and then reason backwards to get there. Not Judge Garth. He was obsessed over the record and the standard of review. He checked and double-checked whether jurisdiction was proper, because if there was no jurisdiction the court had no authority to decide the case.

He also insisted that his clerks give as much attention to hand-written pro se cases as to appeals by lawyers from big firms, on the thinking that every case was equal no matter whether the party was rich or poor. Clarence Earl Gideon wrote his cert petition in pencil, the judge would remind his clerks. You never know which pro se case might be the next Gideon.

Judge Smith heading up judiciary space-trimming effort

The Judicial Conference posted a news release today which included this Third Circuit-related passage:

[T]he Conference received an update on its space reduction program, which was adopted by the Conference in 2013 as a Judiciary-wide cost saving measure. The key component of this effort is to reduce court space nationwide by three percent by the end of Fiscal Year 2018.  Judge D. Brooks Smith, chair of the Conference’s Space and Facilities Committee, reported to the Conference today that the courts have reached more than two-thirds of their overall target of reducing usable square footage by 870,305 square feet. This will result in an annual cost avoidance of approximately $15.5 million.

“In witnessing the commitment and follow-through by courts and court staff across the country, what has been most impressive is the spirit of cooperation, and sometimes even sacrifice, that has brought us to where we are now,” Judge Smith told the Conference. “All circuits have indicated that they plan to meet or exceed their circuit goals.”

The update also described pilot programs for prisoner e-filing and expanded intra-circuit judge-sharing.

What the 2016 presidential election means for the Third Circuit

Much has been written about how the upcoming presidential election will impact the U.S. Supreme Court, but the election’s impact on the circuit courts has gotten much less attention. Liberal advocacy group Alliance for Justice posted this useful analysis back in May, and Russell Wheeler’s excellent research on circuit vacancies, such as here and here, also sheds light on what the election means for the circuits. [Update: also Matthew Yglesias’s interesting piece on here.]

With this post, I want to focus on what the election means for the composition of the Third Circuit.

The Third Circuit has 14 seats and currently has two openings: Judge Rendell’s seat since last summer, and Judge Fuentes’s seat since July. President Obama nominated Rebecca Haywood for the Rendell seat back in March, but that nomination appears stalled. Obama has not nominated anyone for the Fuentes seat yet.

In addition, the court currently has three judges who are eligible to assume senior status and thus create new openings: Chief Judge McKee and Judges Ambro and Fisher. McKee is 69 and his term as chief will end next month. Ambro is 66. Fisher is 71 and has been eligible to go senior since the first year of Obama’s presidency [CORRECTION: he became eligible in 2014]. A fourth, Judge Vanaskie, will become eligible to go senior during the next president’s first term. (So will Judge Smith, but he will become Chief instead.)

So there’s a realistic chance that the next president will get to fill 6 of 14 Third Circuit seats in her or his first term.

Obviously it would be fewer if any of the eligible judges choose to remain active past 65 (which isn’t unusual). Or it could be more if any other active judges left the court. (The most exciting way that would happen is if a Third Circuit judge were elevated to the Supreme Court. Candidate Trump included Judge Hardiman on his Scotus-nominee list, and Scotusblog and I have both mentioned Judge Krause as a possible Democratic-president nominee.)

Now, what does all that mean for the composition of the court? Well, of the court’s current 12 active judges, 7 were nominated by Democratic presidents and 5 were nominated by Republicans. If all 4 eligible judges go senior in the next president’s first term with no other changes, that would leave 4 Dem nominees and 4 GOP nominees. If the next president fills 6 seats in her/his first term, that’s a 10-4 party majority either way.

But, as I’ve observed before, nominating party is a far-from-perfect proxy for the ideology of Third Circuit judges. One day I’ll do a full-blown update my analysis of en banc outcomes, but for now I’ll focus on one observation: the court’s en banc cases in recent years reflect a court that is very evenly divided ideologically. Of the 9 en banc decisions since 2010 that I consider more ideological, the conservative side has won 5 and the liberal side has won 4. This week’s 8-7 vote in the Biderup felon-gun-rights en banc underscores just how evenly the court is divided.

I’d expect the court’s ideological center of gravity to shift somewhat to the left if Clinton wins, or to shift substantially to the right if Trump wins. Trump’s likely impact would be bigger because three of the four judges eligible to go senior are liberal or moderate Dem appointees, as were both of the judges whose seats are already open.

Bottom line, the upcoming election is likely to have a real impact on the Third Circuit, and if Trump wins that impact will be yuuuge.


En banc court — minus two judges listed as voted on rehearing, including the panel author — reverses in Chavez v. Dole Food

Chavez v. Dole Food — civil — reversal — Fuentes

The en banc Third Circuit today unanimously reversed a district court order dismissing a suit by Central American farmworkers over alleged pesticide exposure. The prior panel opinion had come out the other way, with Nygaard joined by Greenaway in the majority and Fuentes dissenting.

Needless to say, it is unusual to see a unanimous en banc ruling that reaches a different outcome than the panel majority did. So what happened? Two things, both interesting.

First, Greenaway switched sides. He joined Nygaard’s panel opinion in favor of Dole, but today he joins the en banc court ruling against Dole. He did not write separately to explain his switch.

Second, Nygaard did not participate. He wrote the panel opinion, and the order granting en banc rehearing stated he would participate, but the docket shows he did not participate in oral argument and he was not a member of the en banc panel today. Also, Hardiman was listed as participating in the en banc vote but was not on the en banc panel for argument or decision.

So, why did Nygaard and Hardiman not participate? Answer: I don’t know. Neither today’s opinion nor the docket entries say.

This is a case with a lot of blue-chip-corporation parties like Dow Chemical and Shell Oil, and it would not be surprising if some of the judges owned stock in one of them and thus had to recuse. Now, it would be surprising to me if such a conflict went unrecognized until after the en banc ruling. (But as I mentioned recently, during now-Justice Alito’s Scotus confirmation proceedings, then-Chief Judge Scirica said in 2005 that CA3 judges had been listed by mistake on en banc corams many times. That could explain well Hardiman but not Nygaard.)

For Nygaard, no potential financial conflicts jump out at me on a quick glance at his 2012 financial disclosure, the most recent of his posted on judicialwatch. But what matters is what he owned in 2016, not 2012, and that is not publicly available. Bottom line, if he recused after writing the panel opinion, I can’t tell why. (It does not appear to be health-related since, for example, his is sitting on argument panels next week.) In any event, his withdrawal is unusual.

As to Hardiman, he disclosed dividend income from Dow Chemical in his 2012 disclosure, also the most recent disclosure up on Judicialwatch, although that does not necessarily mean he still did at the time of this en banc case.

Anyway, I’ve gotten all sidetracked on the composition of the court here and haven’t said a thing about the substance of the opinion. From the introduction (footnote omitted):

Our resolution of this appeal is therefore threefold. First, we conclude that the Delaware District Court abused its discretion under the first-filed rule by dismissing the plaintiffs’ claims with prejudice. Second, we conclude that the Delaware District Court erred by refusing to transfer the plaintiffs’ claims against Chiquita Brands International to another forum. And third, we conclude that the timeliness dismissals entered by the Louisiana District Court do not create a res judicata bar to the plaintiffs’ Delaware suits. As these cases come to us today, there is a serious possibility that no court will ever reach the merits of the plaintiffs’ claims. More than twenty years after this litigation began, we think that outcome is untenable—both as a matter of basic fairness and pursuant to the legal principles that govern this procedurally complex appeal.

Joining Fuentes were McKee, Ambro, Smith, Fisher, Chagares, Greenaway, Vanaskie, Shwartz, Krause, and Restrepo. Arguing counsel were Jonathan Massey of Massey & Gail for the appellants and Andrea Neuman of Gibson Dunn and Steven Caponi (formerly) of Blank Rome for the appellees.

The new 3CBA newsletter is out, featuring a tribute to Judge Sloviter

I just received the August 2016 issue of On Appeal, the newsletter of the Third Circuit Bar Association. The new issue features a warm tribute to Judge Dolores Sloviter, who recently took inactive status, by her former clerk Nancy Winkelman. Winkelman is now a top appellate practitioner at Schnader and President of the American Academy of Appellate Lawyers. Winkelman writes:

. . . I have been so grateful to work with and come to know this most extraordinary jurist: a brilliant intellect, with an extraordinary work ethic; a courage, strength, and independence born of upbringing, character, and necessity; a drive always for the best in herself and everyone around her; a deep commitment to justice and to the judicial system; and that unique and most precious combination of grit and heart.

And, just as Judge Sloviter saw something in me that others may not have seen thirty years ago, so she has given me the opportunity to see something in her. Like many brilliant women of her generation who would come to succeed in a male profession, circumstances required Judge Sloviter to develop a tough exterior. She is of the small cadre of women who were the first in their fields; who were the only women in the room for far too long; who were always surrounded by men who, even when they had good intentions (and many did not), could not possibly have left their prejudices and stereotypes at the door.


Appointed to the Third Circuit Court of Appeals by President Carter in 1979, Judge Sloviter was the first woman ever to serve as a judge on that Court. She was the first (and so far only) female Chief Judge of the Third Circuit. In fact, she is only the fourth woman in the entire country ever to serve as a Circuit Chief Judge at all. Judge Sloviter authored an astounding 808 precedential opinions in her almost 40-year tenure on the Court of Appeals, shaping the law in numerous areas, including antitrust and the First Amendment.

A fierce advocate for diversity and inclusiveness, as Chief Judge (a position she held from 1991 to 1998), Judge Sloviter created the ground-breaking Task Force on Equal Treatment in the Courts to examine racial and gender bias for the Third Circuit. She opened the Third Circuit Conference to all lawyers for the first time ever (a tradition that continues to this day). And she supported women and work-life balance in numerous ways, including offering part-time law clerk positions to working mothers.

It’s a lovely piece worth reading in full.

Also in this issue are detailed write-ups of State National by Reginald Sainvil of Reed Smith and Roberts v. Ferman by former Fisher clerk Devin Misour of Farrel & Reisinger.

The current On Appeal is not yet available on the 3CBA website, but you can download older issues at this link.

And if you practice in the Third Circuit and you’re not a 3CBA member yet, get on it. Dues are just $40, you can join here.

Rendell’s role in Third Circuit en banc cases, and another look at whether the court uses en banc rehearing ideologically

I posted here about yesterday’s blockbuster capital-habeas en banc ruling in Dennis v. Secretary. Here are a couple thoughts on what Dennis can tell us about the dynamics of the court.

Rendell’s outsized role in en banc cases

Often en banc opinion assignments in the Third Circuit are just based on panel assignments — that is, if an en banc majority member wrote a panel opinion, then that judge normally writes the en banc majority opinion. But in Dennis no judge in the en banc majority was on the original panel, because all three panel members were en banc dissenters. So Chief Judge McKee (the ranking judge in the majority and thus the majority authorship assigner) had more latitude than usual in choosing who to assign the opinion to, and he picked Rendell. I see that as the latest sign of the great esteem in which she is held by her colleagues on the court.

Judge Rendell’s pivotal role in the current court’s en banc cases goes beyond yesterday’s case. The court has decided 4 en banc cases in the past 12 months (Lewis, Langbord, NCAA, and Dennis), and Rendell wrote the majority opinion in 3 of the 4! In the fourth, she wrote the dissent. Of the court’s 22 en banc cases decided since McKee became Chief in 2010, Rendell wrote for the court five times — more than any other judge — and wrote the lead dissent 4 other times — also more than any other judge.


Outlier-panel correction, revisited

In my big en banc-analysis post in May of 2015, I wrote:

Don’t expect the en banc court to trump an outlier panel. In some other circuits, en banc rehearing is often granted when the court’s majority wants to wipe out a ruling from an ideologically unrepresentative panel (like when you draw a panel with two liberals in a majority-conservative circuit). If that sort of nakedly ideological use of en banc rehearing happens in the Third Circuit these days at all, it is rare. It may have happened in Katzin, where Greenaway and Smith went from panel majority to en banc dissenters in an ideologically charged case. But even Katzin involved an important novel issue, not a garden-variety instance of we-disagree-with-the-panel. So, as far as I can tell, the court is honoring its IOP 9.3.3 claim that it does “not ordinarily grant rehearing en banc when the panel’s statement of the law is correct and the uncontroverted issue is solely the application of the law to the circumstances of the case.”

Four en banc cases have been issued since I wrote that, and 3 of the 4 effectively reversed the panel outcome. More interestingly, 2 of them look like what I said is rare, en banc majorities trumping outlier panels:

  • In Lewis, a panel majority of two Republican-nominated judges (Fisher with Chagares) issued a conservative ruling* (holding a criminal-trial error harmless). The court granted rehearing en banc and issued a liberal ruling, with every Democratic-nominated judge in the majority and three Republican-nominated judges dissenting.
  • In Dennis, a panel of three Republican-nominated judges (Fisher with Smith and Chagares) issued a conservative ruling (denying capital habeas relief). The court granted rehearing en banc and issued a liberal ruling, with every Democratic-nominated judge in the majority and four Republican-nominated judges dissenting.

* I’m using “conservative ruling” in these two bullets as shorthand for “ruling whose outcome conservatives traditionally favor.” Same idea with “liberal.”

What happened in Lewis and Dennis bears watching, but I still doubt it’s the new normal. Consider the other two en banc cases decided in the past year:

  • Langbord split the court’s Democratic-nominated judges, with four of them in the majority and three dissenting.
  • NCAA voting broke down non-ideologically, with liberal and conservative judges all in the majority and only Fuentes and Vanaskie dissenting.

There will never be enough en banc cases to draw robust conclusions from them about the court’s dynamics. The tiny sample size makes it impossible to tell the meaningful trends from the statistical blips.

Still, for appellate nerds, it’s fun to try.

Senator Toomey is Blocking a Well-Qualified Judicial Nominee and Adding to the Lack of Gender Diversity in Our Judiciary

Note: I had the pleasure of co-authoring this post with Ellen C. Brotman, Chair of the White Collar and Government Investigations Practice at Griesing Law, LLC, a Philadelphia-based, woman-owned law firm. You can follow Ellen on Twitter @EllenBrotman.


Women judges graph

Last month, the United States Court of Appeals for the Third Circuit held the swearing in of its latest judge, the Honorable L. Felipe Restrepo, a naturalized American citizen, born in Colombia, a graduate of the University of Pennsylvania and Tulane Law School.  Judge Restrepo is a universally respected jurist and legal scholar who brings a diversity of background and training to the Court.

But despite this positive development, the Third Circuit still has a diversity problem: the Court has 13 active judges, and only two of them are women. That’s the lowest proportion of women of any federal appeals court in the country.

The Third Circuit’s shortage of women judges undermines both the public’s confidence in our justice system and the Court’s ability to tap into diverse perspectives in its deliberations.  Yet, as part of a Republican effort to thwart President Obama’s judicial nominations, Pennsylvania’s Republican United States Senator Pat Toomey is currently blocking the nomination of a well-qualified woman, Rebecca Ross Haywood, to the Court.  This partisan obstructionism has to stop.

The Third Circuit sits in Philadelphia and hears appeals from federal courts in Pennsylvania, New Jersey, Delaware, and the Virgin Islands. It is one of 12 regional federal circuit courts. Federal judges are nominated by the President, confirmed by the Senate, and serve for life. Once judges reach a certain age and number of years of service, they have the option of entering a sort of semi-retirement known as senior status. When a judge takes senior status, it creates an open seat on the court for a new active judge.

Nationwide, about a third of federal appellate judges are women. All but two other circuits have a proportion of women judges that’s twice as high as the Third Circuit’s; in three circuits, the proportion of women is three times greater. For example, the Eleventh Circuit — considered by many the most conservative circuit court in the country — has five women among its 11 active judges, or 45 percent.

Of course, it is encouraging that the Third Circuit is doing better when it comes to racial and ethnic diversity. The Court’s proportion of African American and Hispanic judges is above the national circuit-court average.

But those responsible for selecting judges should be doing everything they can to correct the Third Circuit’s shortage of women. After Judge Rendell took senior status a year ago, President Barack Obama nominated Rebecca Ross Haywood, the Chief of the Appellate Division in the United States Attorney’s Office in Pittsburgh, to fill Judge Rendell’s seat.  AUSA Haywood has more experience as a federal prosecutor and appellate advocate than any recent Third Circuit appointee. And Haywood’s nomination is historic — she would be the Court’s first-ever African-American woman. The American Bar Association gave Haywood its highest rating, Unanimously Well Qualified. Yet Senator Toomey questions Haywood’s abilities and is using Senate procedural rules to block her nomination.

Why is gender diversity important? Aside from the importance of equally recognizing accomplishments and providing role models and exemplars, diverse perspectives lead to better decision making.  One study found that women federal appellate judges are significantly more likely than men to rule in favor a party alleging discrimination. Just having women judges on the panel deciding a case has a significant impact on how the men judges on the panel rule, too: with a woman on the panel, the study found, men are significantly more likely to rule in in favor of a civil rights litigant. The recent scandal over misogynist and racist emails exchanged between Pennsylvania Supreme Court justices and attorneys here in Pennsylvania demonstrates how important a diverse bench is to the public’s ability to have confidence in justice system.

Just a decade ago, the Third Circuit had a solid contingent of women judges: Judge Delores Sloviter, Judge Jane Roth, Judge Marjorie Rendell, and Judge Maryanne Trump Barry. But, since 2006, all four women have taken senior status, and Judge Sloviter recently stopped hearing cases altogether. In that time, only two male Third Circuit judges went senior, and only two of the judges added since 2006 — Judge Patty Shwartz and Judge Cheryl Krause — are women.  From 2000 and 2012, 10 new judges joined the Court: all 10 were men.

AUSA Haywood deserves the nomination because she has the acumen, the training, and the character. The Third Circuit deserves a judge with AUSA Haywood’s skills, wisdom and distinct perspective. Senator Toomey’s constituents deserve a representative who will stop playing politics with our justice system. It’s time to move AUSA Haywood’s nomination forward.

“As Trump has advanced this rhetoric, he has practically begged the question: What would his sister think?”

Rachel Berg has this fascinating article today on Realclearpolitics, venturing some answers to the query that forms the title of this post. The headline is, “Trump and His Jurist Sister: A Study in Contrasts.” Appellate star David Fine of K&L Gates is quoted:

Barry “is a very active judge at oral argument, which is usually a sign a judge has already read the briefs and is very actively thinking about the case,” said David Fine, an appellate lawyer based in Harrisburg, Pa. “She is very polite in questioning and at the same time also direct.”

I’m quoted too.

The article features an interesting discussion of Barry’s record in immigration appeals, focusing on an opinion I haven’t seen mentioned in any prior Barry/Trump coverage:

[M]any of her immigration-related decisions are notable for their clear breaks with Trump: in calling for limits on the executive’s authority, and in their explicit compassion for individuals.

* * *

[O]n the Third Circuit bench, Barry considered whether the government should be permitted to deport Malachy McAllister, who had fled persecution and political turmoil in Northern Ireland in the 1980s and ultimately sought asylum in the U.S. Beginning in 1999, however, immigration authorities sought to deport him.

The panel, including Barry, found that there were no legal avenues for McAllister and his family to remain in the country. But her opinion sought to highlight the humanity of the case and suggested that the law had fallen short.

“I refuse to believe that ‘Give me your tired, your poor, your huddled masses yearning to breathe free…’ is now an empty entreaty,” Barry wrote. “But if it is, shame on us.”

“I cannot find a way to keep the McAllisters in this country, and I have surely tried,” Barry added. “But the laws Congress has enacted, particularly those enacted in the wake of the September 11th horror, are bullet-proof, designed, as they should be, to combat terrorism. The problem here, though, is that Congress’s definition of ‘terrorist activity’ sweeps in not only the big guy, but also the little guy who poses no risk to anyone. It sweeps in Malachy McAllister.”

Check out the whole story, it’s worth it.



Third Circuit recusal procedure, the basics and beyond

Okay, quick show of hands — let’s see everyone who predicted that judicial recusal would ever be a national politics headline-grabber? Anybody?

First, there was a flurry of silly coverage about whether Judge Maryanne Trump Barry would recuse from the Bridgegate-disclosure appeal. Then the media tsunami about Donald Trump’s bashing a Hispanic district judge for not recusing from the Trump University case. All the sudden, judicial recusal is right up there with Game of Thrones and gorilla-enclosure practices amongst the key issues of our age that you’re expected to be able to discuss intelligently.

Fear not, I’m here to help.

The federal standard for judicial recusal is defined by statute, 28 USC § 455 (emphasis mine):

(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

b) He shall also disqualify himself in the following circumstances:

1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;
3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;
4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;
5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
i) Is a party to the proceeding, or an officer, director, or trustee of a party;
ii) Is acting as a lawyer in the proceeding;
iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;
iv) Is to the judge’s knowledge likely to be a material witness in the proceeding.

That’s all pretty clear (albeit sexistly worded). Third Circuit IOP 11.2.2 elaborates on what counts as a financial interest.

Another situation not specifically mentioned in § 455(b) is where an appellate judge presided over the same case in trial court or state court. This comes up whenever a new circuit judge used to be a district or magistrate judge — that was true of six of the last seven Third Circuit appointees, so this pops up a lot. Third Circuit local rule 26.1.2 addresses this situation, requiring the parties to notify the court whenever it applies.

Okay, so that’s the standard, but what is the procedure for raising grounds for recusal? Recusal can happen either on the judge’s own initiative or at the request of a party.

Judicial-initiated recusal in the Third Circuit is covered by the circuit IOP 11.1:

11.1.1 Before cases are sent to a panel, the clerk transmits copies of the docket sheets and disclosure statements to each judge who responds promptly informing the clerk of those cases in which the judge is recused.

11.1.2 Each judge may submit to the clerk in writing those circumstances which would generally require a recusal, including names of businesses in which the judge or family members have a financial interest, names of lawyer relatives whose names may appear as counsel in the appeals, and names of law firms on whose cases the judge does not sit.

Third Circuit judges’ standing recusal lists (the second paragraph in 11.1) are not available to the public. But in the past the Third Circuit released information about at least one individual judge’s recusal practices. Howard Bashman reported that in 2000 the court disclosed that Judge Rendell recused herself from all cases in which a party or its law firm contributed over $2500 to her then-husband Edward Rendell’s political campaign, unless waived by the parties, and from any case involving such a contribution of $2500 or less if any party objected. Bashman reported in 2001 that Rendell’s contribution-related-recusal policy was on the Third Circuit’s website, but I don’t find any notices related to specific judges’ recusal policies on the website today.

Also, then-Judge Alito’s CA3 standing recusal lists were released to the Senate during his Supreme Court confirmation proceedings. He stated that his list included cases involving his sister’s law firm and, for his first four years on the court but not thereafter, cases he’d handled as a U.S. Attorney. His hearing testimony also indicated he updated his standing list annually.

Information about financial interests that could cause a judge to recuse is available from the disclosure forms that all federal judges are required to file annually. Those forms are available here (2015 reports are here [UPDATE: unfortunately now they’re behind a paywall], a searchable database is or at least was here), and I’ve mentioned them on the blog here and here.

Also, judges occasionally pledge to recuse from certain cases during their confirmation proceedings. For example, Alito’s circuit-nomination Senate questionnaire reportedly pledged to recuse from cases he had prosecuted as U.S. Attorney or involving certain companies.

For recusal requests raised by a party, 28 USC § 144 applies:

Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.

The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.

Whether recusal is initiated by the judge or by a party, either way a judge’s decision to recuse (or not to recuse) is normally not explained to the parties or the public. I’m not aware of any Third Circuit opinions where a judge explained his or her reasons for recusing or not recusing from a case (but I wouldn’t be surprised if it’s happened and I’ll update the post if anyone enlightens me). In a similar vein, there are Third Circuit cases about a district judge’s failure to recuse (notably US. v. Antar), but I don’t know of any about a circuit judge’s.

Not only do judges not explain why they recused, but in many cases no one outside the court will realize it happened. As indicated by IOP 11.1 quoted above, judge-initiated recusals normally occur long before the composition of the panel is disclosed to the parties. The recused judge is replaced on the panel, IOP 12.1, and the parties are none the wiser. But, at least for cases calendared by the court, it often will be apparent from the calendar when a judge may have recused from a specific case. If judges A, B, C comprise a panel deciding five cases submitted on a given day, but judges A, B, and D are the panel deciding another case, then it’s at least a good bet that judge C recused from the case D is hearing.

It’s easier to tell when judges have recused from considering a petition for rehearing en banc, because the order granting or denying rehearing en banc lists only the judges who participated, as I explained here. (But back in 2005 then-Chief Judge Scirica reportedly found frequent errors where recused judges were listed as participating; I don’t know how much such errors still occur.)

And I’ve also blogged here about a case decided earlier this year where the entire court apparently recused (due to one judge’s indirect financial stake in the case, as best I could tell [see John’s comment below]) and so the case was decided by a conflict panel of other-circuit judges.

So there you have it, recusal in all its glory. If I’ve overlooked anything, please post a comment or email me.

Becker, Higginbotham, and Ambro — three of Posner’s “great” judges

The second half of Seventh Circuit Judge Richard Posner’s provocative and essential Green Bag essay on the federal judiciary is out, here. (First part here.)

Third Circuit enthusiasts, take note:

It is not merely nostalgia that reserves the adjective “great” for a bare handful of Justices all dead, all of whom were pragmatic, moral, and in a nonpartisan sense “political”: Marshall, Holmes, Brandeis, Cardozo, Hughes, Jackson, the two Harlans, perhaps a few others (Story? Black? Rehnquist? Frankfurter?).16

16 And on the lower courts Traynor, Friendly, L. Hand, Kozinski, Boudin, Leval, Wisdom, Leventhal, Wilkinson, Magruder, C. Fried, Wyzanski, Weinstein, Vanderbilt, BeckerHigginbotham, Edwards, Shaw, Liu, Linde, Katzmann, Ambro – and many others.

I count only four active circuit judges in that footnote, including Judge Ambro.

H/T: How Appealing.

“[I]t is difficult to believe that this highly ethical and respected judge condones behavior that diminishes the judicial branch that she has served so well”

District Judge John Jones III of the Middle District of Pennsylvania had this op-ed in Sunday’s Philadelphia Inquirer, entitled “Commentary: Trump’s criticism of judge unwarranted and dangerous.” He criticizes Trump for his criticism of Judge Gonzalo Curiel, the California federal judge presiding over the Trump University case. Judge Jones notes that Judge Curiel asked him not had not asked him to speak out, but that he thought it important to do so.

One interesting passage:

Here is a not-so-surprising disclosure: Judges are all too human and deeply imperfect. We can certainly get it wrong. Indeed, I have been told that on a number of occasions by a court of appeals. And we are hardly above being criticized by the public. I know this only too well, having decided a number of high-profile and controversial cases during my 14 years on the bench that have generated searing personal criticisms. That is as it should be in a democracy.


Of course Trump should and likely does know better than to believe that judges operate this way. His sister Judge Maryanne Trump Barry is an accomplished and superb member of the Third Circuit U.S. Court of Appeals, based in Philadelphia. Barry has participated in countless decisions involving controversial cases and has served with great distinction. I cannot know what Barry thinks of her brother’s views on Curiel, but it is difficult to believe that this highly ethical and respected judge condones behavior that diminishes the judicial branch that she has served so well.
You don’t see that every day.
UPDATE: Post updated to correct my error.

“Trump’s sister, the federal judge, ‘a little different’ from him”

The title of this post is the headline of a winning story by Jane Musgrave today in the Palm Beach (Fla.) Post. I’m quoted, but I was outdone in the memorable-quote department:

“She’s quiet. She doesn’t go to the balls,” longtime family friend and Florida Trump delegate Robin Bernstein said, struggling to find the words to describe Barry. “She’s everything you’d want a judge to be. She’s eloquent and articulate.”


Which reminds me, I forgot to post this article by Robin Bravender last week on Greenwire, also comparing Judge Barry to her brother (and also quoting me). The headline: “Trump’s sister likes EPA better than he does.”

Former CA3 Judge Lewis on judicial-nomination obstructionism: “It doesn’t have to be this way.”

Chris Mondics has a neat story this morning on, entitled “History contradicts party-line animosity.” It features retired Third Circuit Judge Timothy Lewis, now at Schnader Harrison, describing the process by which he was confirmed, quickly and unanimously, after being chosen by Arlen Specter and nominated by Pres. George H.W. Bush. The article suggests that Lewis’s non-partisan confirmation “might point the way forward for the U.S. Supreme Court nomination of Merrick Garland,” but it’s equally instructive for the pending Third Circuit nomination of Rebecca Haywood.



Trump’s judge-bashing, closer to home

Perhaps you’ve noticed Republican presidential candidate Donald Trump in the news lately. This week, the main storyline has been Trump’s criticism of the California federal district court judge presiding over a suit over Trump University. Here’s one story among gazillions.

Yesterday’s New York Times featured an article headlined, “A Biased Judge? Donald Trump Has Claimed It Before.” As a Third Circuit junkie, here’s the passage that jumped out at me:

Mr. Trump ridiculed a Pennsylvania judge appointed by President Jimmy Carter as “not his most brilliant appointment,” and wrote that the judge was “a willing accessory” to any crimes of convicts she had released from prison.

He does this despite his close ties to a federal judge, Maryanne Trump Barry, his sister.

What? A Pennsylvania judge appointed by Carter? Was he talking about Judge Sloviter? The article didn’t say.

So I went digging. It turns out he wasn’t talking about Sloviter, he was talking about EDPA Judge Norma Shapiro. The comments are from Trump’s 2000 book The America We Deserve. Trump argues we need judicial elections because “Criminals are often returned to society because of forgiving judges” and “When they hurt us, we need to make sure we can vote them out of the job.” He muses “what wonders a public vote would work on the career of Norma Shapiro,” then describes a 90’s case where she ordered prisoners released due to prison overcrowding. (Here’s one contemporary news story.) He called the ruling a “disaster” and “Shapiro’s jailbreak,” and said:

From 1998 to 1992, 20 percent of thugs arrested for killing cops were out on probation or parole. In my opinion, Judge Shapiro was a willing accessory to all those crimes.

Trump went on to write, “Unfortunately, there are plenty of Shapiros out there, which is one major reason why our streets are full of dangerous convicts.” Conclusion: “Clearly we don’t have too many people in prison. Quite the contrary.”

I have not seen any reporting at all on whether Trump still believes federal judges should be elected, and he has largely avoided discussing criminal-justice reform.

So, not Sloviter, but still extraordinary.

Now it’s Hardiman’s turn in the Trump-media glare [updated]

For several months, Judge Barry has been the Third Circuit judge in the national media spotlight in connection with the Trump presidential campaign. But that all changed yesterday when Trump included Hardiman on his list of 11 potential Supreme Court nominees.

My post yesterday collected conservative praise of Trump’s list and the couple early stories featuring Hardiman. UPDATE: Here’s another, from David Lat on Abovethelaw.

Since then more Hardiman coverage has emerged. A Wall Street Journal analysis of the 11 said this about Hardiman:

Judge Thomas Hardiman, 50, joined the Third U.S. Circuit Court of Appeals in 2007, after serving as a district court judge in Pennsylvania for four years. Both appointments came from George W. Bush. A graduate of University of Notre Dame and Georgetown University Law Center, he worked in private practice at Skadden, Arps, Slate, Meagher & Flom LLP and other law firms before becoming a judge. The Trump campaign says he’s the first in his family to attend college. In a decision he authored, which was later affirmed by the U.S. Supreme Court, the appeals court held that a jail’s policy of strip-searching all detainees, even those with minor alleged offenses, wasn’t a violation of the Fourth Amendment.

A Washington Post analysis of the 11 by Amber Phillips included this:

Hardiman is a judge on the U.S. Court of Appeals for the 3rd Circuit and also a George W. Bush appointee. He’s a Georgetown Law School graduate and has written two majority opinions that were reviewed by the Supreme Court: one supporting the strengthening of mandatory minimum sentences for criminals, and the others supporting a Pennsylvania jail’s policy of strip-searching the people it arrests, arguing that it does not violate a person’s Fourth Amendment right of unreasonable searches and seizures.

Arch-liberal Mark Joseph Stern of Slate had this:

Then there’s Thomas Hardiman. Another Bush appointee, Hardiman is a law and order guy. He wrote an opinion affirming the constitutionality of a jail’s policy to strip search every single arrestee—even those brought in for minor traffic offenses. (Regrettably, the high court narrowly upheld his decision.) In a different case, Hardiman wrote that there is no clearly established First Amendment right to videotape law enforcement officers in public—an extremely dubious if not outright incorrect proposition. Hardiman reads the Second Amendment quite broadly, arguing that states cannot restrict residents’ ability to carry handguns in public. And while he interprets the First Amendment broadly in the realm of campaign contributions, he takes a very narrow view of students’ free speech rights. Sound familiar?

Ron Brynaert of Dailycaller had this critical look at one of the same cases mentioned by Stern, Hardiman’s opinion in a 2010 case affirming summary judgment in favor of a police officer and ruling that there was no clearly established right to videotape officers during a traffic stop. (Neither article mentions the important fact that Hardiman’s opinion was joined in full by McKee and Pollak by designation.)

UPDATE: another liberal take, by Ian Millhiser on Thinkprogress, is here. He calls Hardiman “one of the more enigmatic names on Trump’s list” and says “he appears to have had more luck steering away from controversial cases,” resulting in “a thinner ideological profile than some of the other names on Trump’s list.”

Finally, Paul Gough had this brief profile of Hardiman in the Pittsburgh Business Times.

UPDATE: here’s a thoroughly reported critical profile of Hardiman by Rich Lord in Pittsburgh CityPaper from way back in 2003, when Hardiman’s WDPA nomination was pending.

And Laura Olson has this profile of Hardiman in the Allentown Morning Call, citing the 2003 profile and noting his bipartisan political ties.


Trump names Hardiman as one of his possible Supreme Court picks [updated]

Presumptive Republican presidential nominee Donald Trump today released a list of 11 potential Supreme Court justice nominees that he would vet to fill Justice Scalia’s seat, the Associated Press reports.

Among those on the list: Third Circuit Judge Thomas Hardiman.

[Hat tip to How Appealing.]


UPDATE: Early conservative commentary has been enthusiastic about Trump’s list but has little to say about Hardiman specifically:

Ilya Shapiro at Cato

John Yoo at National Review

Jim Geraghty at National Review

Paul Mirengoff at Powerline


UPDATE 2: Here is some good early Hardiman-focused coverage:

Brian Bowling at TribLive

Gina Passarella at Legal Intelligencer


Third Circuit panel will hear argument on Bridgegate disclosure; media fixates on Barry’s role

The long-simmering Bridgegate scandal will make its way to the Third Circuit next month, when a panel of the court hears argument on whether to release the names of the unindicted co-conspirators, per an order reportedly signed today by Judge Ambro.

Much of the early media coverage on the order focuses on whether Judge Barry would recuse herself from the panel, given that Governor Christie is both a central figure in the Bridgegate scandal and a top supporter of Barry’s brother, presumptive Republican Presidential nominee Donald Trump. Here are links to stories by Gawker, Twitchy, and Politico.

UPDATE: and here’s another, by Philip Bump for the Washington Post, that begins, “A clear disclaimer at the top: There is a chance — an outside, unlikely chance — that this happens.”

Of course, the odds of Barry (or any other individual judge) being even assigned to any particular three-judge panel are fairly low, and if she chose to recuse she likely would be replaced without the public ever knowing.

But even if there ends up not being any Barry angle, I expect this to remain a high-profile case for the court.

“Free Pa’s federal judicial nominees from Senate limbo”

The title of the post was the headline of an April 15 staff editorial on, criticizing Senate Republicans’ “absolute fetish of blocking President Barack Obama’s judicial appointments – an obstructionist posture that has burdened benches across the nation, particularly in Pennsylvania.” One of the obstructed nominations mentioned, of course, is that of Rebecca Ross Haywood to the Third Circuit.

From the editorial:

Reporter Rob Hotakainen writes that the Senate has approved just 17 judicial nominations since Republicans took control in 2015. That’s fewer than half the 40-plus circuit and district court nominees approved by the Democratic-controlled Senate during a similar period during George W. Bush’s presidency. In fact, last year saw the fewest judicial confirmations since 1960.

So much for Republican majority demonstrating it can govern.

The result is an overburdened federal judiciary for which there is little hope of assistance any time soon. That’s bad news for Pennsylvania, which has four judicial appointees awaiting votes – tied with Texas for the most in the nation.

Otherwise, Haywood’s nomination has been getting disappointingly little media attention recently, as the Garland nomination continues to use up all the judicial-nomination-coverage oxygen.

Judge Sloviter, a “trailblazer” and “true legal giant,” assumes inactive status

Iconic Third Circuit Senior Judge Delores K. Sloviter assumed inactive status yesterday. Her decision was announced in a press release issued by Chief Judge McKee (link here from How Appealing). According to Chief Judge McKee’s statement, she “made the difficult decision due to a serious medical condition with her eyes.”

Chief Judge McKee’s statement contains a warm tribute to Judge Sloviter, describing her as “a trailblazer” and noting that she was the first woman to be a Third Circuit judge and the only woman to be the court’s Chief Judge. The statement concludes:

Judge Sloviter is a true legal giant. Her contribution to the Court and the legal profession cannot be diminished. I speak for the entire Court family in wishing Judge Sloviter good health, and in thanking her for all that she has done for the Third Circuit. We expect and hope that she will continue to play an active role in the life of the Court through participation on court committees and other duties.

Additional coverage by P.J. D’Annunzio in the Legal Intelligencer here, with admiring quotes from Shira Goodman, Chip Becker, and Bill Hangley. And Bruce Greenberg has this post on his New Jersey Appellate Law blog.

Chief Judge McKee’s statement does not mention what will happen to Judge Sloviter’s current clerks. (One of them is Tyson Herrold, per LinkedIn.) Here’s hoping they land on their feet.

Judge Sloviter’s final published opinion was last November, here. Her final decided case was yesterday, here. UPDATE: I spoke too soon. The court issued a per curiam opinion today (the day after she assumed inactive status) in which she is listed on the panel.

The Third Circuit will not be the same without her.


“Friends, neighbors hail Haywood nomination”

Today’s Uniontown (Pa.) Herald Standard has this adoring profile of Third Circuit nominee Rebecca Haywood by Pat Cloonan. The main sources are childhood friends, neighbors, and teachers, including a classmate who also became a lawyer:

“I think she has the intellect and temperament to be an outstanding appellate judge,” said Dan Sinclair, a partner in the Ecker[t] Seamans law firm who graduated with Haywood in 1986. “We had a lot of the same classes, and some activities. I hope the United States Senate considers her and confirms her quickly.”

* * *

Sinclair recalled Haywood being valedictorian of the Class of 1986.

“I can’t think of very many people I have met in this profession who are more qualified or more suited to be a federal appellate judge than she is,” Sinclair said. “Her work experience and her background make her very well suited for that.”

Neat story.

Considering whether Haywood is qualified through the lens of an appeal she lost

Republican Senator Pat Toomey reportedly thinks Third Circuit nominee Rebecca Ross Haywood isn’t qualified. Yesterday I looked at whether Haywood is qualified by examining her legal experience. I concluded that her experience as an AUSA and a federal clerk compares favorably with the court’s recently appointed judges.

We can also approach the question of whether Haywood is circuit-judge material from a different angle. Being qualified isn’t just about experience, it’s also about ability.

As the chief of appeals for the WDPA U.S. Attorney’s office, Haywood has been involved in a lot of appeals. Earlier this week I linked to audio files for four of her oral arguments, featuring her argument in Wecht.

Today I want to take a closer look at another of Haywood’s appeals. I picked US v. Gregory Brown, 13-4442, for a few reasons. First, it’s pretty recent, briefed and argued in 2014. Second, it looks like Haywood handled the case personally, since there is no subordinate AUSA listed on the brief. Third, it resulted in oral argument and a published opinion. And, importantly, the government lost, so if Haywood’s work weren’t up to par this case would be a good bet to show that.

To assess the quality of Haywood’s work in Brown, I looked at the brief she filed in the appeal (from Pacer) and the oral argument.  (I also looked at Brown’s reply brief, the court’s opinion, and Haywood’s unsuccessful panel rehearing petition.) Here’s what struck me:

  • Overall, Haywood’s brief was outstanding: clear, clean, and on-target. Not a hint of the rhetorical fist-shaking that drains the credibility of so many appellate briefs. Thoroughly professional.
  • The brief wasn’t just competent, it was also confident and creative. In most briefs, the jurisdictional statement is just a dry litany, but she used it to mention on page one the powerful fact that the defendant had threatened to kill two federal judges. She departed from the typical formula in her issue statement, three pages long and full of facts and cites. Most related-case statements I see are lazy, but she put in the effort to find and list 23 other appeals the defendant had brought, again helping frame things to her advantage.
  • Her oral argument was terrific, too. (Here’s the link to the audio again; her argument starts at 16:25.) The panel (Ambro, Barry, Restani) was extremely engaged. Her answers are direct, respectful yet assertive, and cogent. Listen to the section from 22:24 to 24:10 (she’s responding to a long Ambro question that began at 21:30). That’s a model for how a thoroughly prepared advocate handles hard questions. It’s a graceful, powerhouse performance.
  • She was great, not perfect. The defendant’s reply brief said her brief ducked a significant issue. The typography in her brief wasn’t Butterick-caliber. And towards the end of her oral argument she was speaking a bit too quickly and seemed to speak over a judge.

Bottom line, I saw nothing in Haywood’s performance in Brown that would support Toomey’s charge that she is unqualified. All I see is a first-rate advocate with the makings of an outstanding judge.

A look at Third Circuit nominee Rebecca Haywood’s qualifications

Senator Pat Toomey reportedly has questioned Rebecca Haywood’s qualifications to be a Third Circuit judge, but a quick comparison of her background with the court’s recently confirmed judges shows that her qualifications compare favorably.

In the past 10 years, there have been 8 judges confirmed to the Third Circuit: Chagares, Jordan, Hardiman, Greenaway, Vanaskie, Shwartz, Krause, and Restrepo.

Of those 8, there are 5 who had served as Assistant U.S. Attorneys (the times of service are approximate):

  • Chagares — 14 years as AUSA, with 5 years as chief of civil division
  • Jordan — 5 years as AUSA
  • Greenaway — 5 years as AUSA, with 2 as chief of narcotics
  • Shwartz — 14 years as AUSA, with 3 as chief of criminal division and 2 as executive AUSA
  • Krause — 5 years as AUSA

Haywood has been an AUSA for 17 years, with 6 years as appellate chief.

Of the same 8, there were 6 who had clerked for federal judges:

  • Chagares — circuit
  • Jordan — district
  • Greenaway — district
  • Vanaskie — district
  • Shwartz — district
  • Krause — circuit and USSC

Haywood clerked twice for WDPA Judge Bloch.

And, while I haven’t run the numbers on this, I’d bet the farm that Haywood has more experience arguing cases in the Third Circuit than any recent Third Circuit nominee. Earlier I linked here to a few of her more significant Third Circuit oral arguments.

Unqualified? Hard to square that with her record.

Haywood background round-up [updated]

Biographical information is beginning to emerge for Rebecca Ross Haywood, President Obama’s nominee to the Third Circuit.

First, here is the full text of the White House nomination announcement:

WASHINGTON, DC – Today, President Obama nominated Rebecca Ross Haywood to serve on the United States Court of Appeals for the Third Circuit.

“Throughout her career, Rebecca Ross Haywood has shown unwavering integrity and an outstanding commitment to public service,” said President Obama. “I am proud to nominate her to serve on the United States Court of Appeals.”

Rebecca Ross Haywood:  Nominee for the United States Court of Appeals for the Third Circuit

Rebecca Ross Haywood is an Assistant United States Attorney in the Western District of Pennsylvania, where she has served as Chief of the Appellate Division since 2010.  As part of the office’s Management Team, she regularly consults on and reviews filings for the United States Attorney’s Office for the Western District of Pennsylvania.  In addition, Haywood frequently practices before the United States Court of Appeals for the Third Circuit and confers with trial attorneys on cases before the United States District Court for the Western District of Pennsylvania.

Haywood was born in McKeesport, Pennsylvania and raised in the neighboring town of Elizabeth, Pennsylvania.  She received her A.B. cum laude in 1990 from Princeton University.  She then attended the University of Michigan Law School, where she served as an Associate Editor on the Michigan Law Review and obtained her J.D. magna cum laude in 1994.  After graduating from law school, Haywood clerked for the Honorable Alan N. Bloch of the United States District Court for the Western District of Pennsylvania from 1994 to 1996.  From 1996 to 1997, she worked in the Pittsburgh office of the law firm of Jones, Day, Reavis & Pogue (now Jones Day).  Haywood served as an Assistant United States Attorney for the Western District of Pennsylvania from 1997 to 2001, where she handled civil matters, including representing federal agencies in employment and medical malpractice cases.  From 2001 to 2003, she once again clerked for the Honorable Alan N. Bloch.  In 2003, Haywood returned to the Civil Division of the U.S. Attorney’s Office for the Western District of Pennsylvania, where she was promoted to Appellate Chief in 2010.

During her time in the United States Attorney’s Office, Haywood has been actively involved in workplace management and training, serving as a member of the executive and training committees since 2011, as well as serving as the coordinator for prevention of workplace harassment from 2004 to 2010.  In addition, she is actively involved in the community and regularly speaks to students and legal organizations about the law and her career.

Second, a Haywood wikipedia entry was born today.

Here is a link to the oral argument audio in one of the more significant appeals Haywood handled as an Assistant U.S. Attorney, United States v. Wecht. Haywood’s argument begins at 22:00. The panel was Smith, Fisher, and a spirited Van Antwerpen, and her opposing counsel was David Fine. The resulting opinion ruling in the government’s favor is here.

Three other notable Haywood oral arguments:

Strong coverage of the nomination controversy in this article entitled, “Toomey Irked by Obama’s Third Circuit Nominee,” by P.J. D’Annunzio in yesterday’s Legal Intelligencer.

Groups issuing statements in support of her nomination include Why Courts Matter Pennsylvania, here, and Alliance for Justice, here.

The best profile of Haywood so far is Brian Bowling’s article at A photo of Haywood accompanies the post, along with some good quotes (with hyperlinks added by me):

The nomination of Haywood, who is black, is an important step for diversifying the courts, said Tim Stevens, of the Pittsburgh Black Political Empowerment Project.

“There’s a dearth of people of color in the courts, either locally or nationally,” he said. “Her nomination is important not only as a person of color but as a person of integrity.”

Two former assistant U.S. attorneys who worked with Haywood and, as private attorneys, faced off against her in court, said she’ll make a good judge.

“Aside from possessing the most important quality a judge can have — which is good judgment — Rebecca is brilliant and thoughtful,” said Tina Miller, a criminal defense lawyer who has known Haywood for more than 20 years.

“She’ll make an excellent judge,” said Stephen Stalling[s], a criminal defense lawyer who worked with Haywood for four years. “She has first-rate appellate experience, an excellent legal mind and probably the perfect temperament to serve on the 3rd Circuit: She’s intellectually curious, fair-minded and smart as a whip.”

Stallings was AUSA co-counsel with Haywood in Wecht.

Bruce Greenberg has this informative post at his New Jersey Appellate Law blog.

The Daily Princetonian has this profile, featuring a quote from her favorite undergraduate professor.

I will continue to update this post as additional sources become available.

Politics, not qualifications, is why Haywood won’t be confirmed

Rebecca Ross Haywood is not going to be confirmed by this Senate. Not because she’s somehow unqualified, not because she “struggled” to answer an interview question from Senator Pat Toomey, and not because President Obama chose a “confrontational approach” to judicial nominations. Haywood won’t be confirmed because Toomey will use his blue-slip power to block her, as he would use that power to block any Obama Third Circuit nominee now. The rest is just a charade, an effort minimize the price Toomey pays on election day for blocking the court’s first African American woman, just as Haywood was surely chosen to maximize that price. Toomey knows it, Obama knows it, hopefully poor Haywood knows it too.

“Obama’s pick … draws Toomey’s ire”

Jonathan Tamari and Jeremy Roebuck are reporting at that Republican Senator Pat Toomey is already attacking President Obama’s nomination of Rebecca Ross Haywood for the Third Circuit:

But Toomey questioned her qualifications, said the White House knows he does not support her, and said the administration had chosen a “confrontational approach” over a longstanding practice of cooperation when it comes to federal judges from Pennsylvania.

“Instead of blowing up a bipartisan working arrangement,” he added, “the president should take a step back, put an end to this political theater, withdraw a nomination that is not suitable for such an important lifetime position.”

* * *

Toomey said Haywood had “struggled to answer legal questions” about Obama’s executive actions shielding some illegal immigrants from deportation – moves that outraged conservatives.

Playing out as I predicted so far.

Rebecca Ross Haywood nominated for Third Circuit opening

Rebecca Ross Haywood, chief of appeals and Assistant US Attorney for the Western District of Pennsylvania, has just been nominated by President Obama to the Third Circuit. If confirmed, she will fill the seat vacated when Judge Rendell went senior and will be the third African American judge currently on the court.

Early coverage at here, statement by the Leadership Conference on Civil Rights and Human Rights here.

Former Third Circuit Chief Judge calls on Senate to act on Supreme Court opening

John Gibbons, former Chief Judge of the Third Circuit, signed a letter released today calling on Senate leaders to act on President Obama’s forthcoming Supreme Court nominee. Former D.C. Circuit Chief Judge Patricia Wald also signed the letter, which was featured in a story by Zoe Tillman in today’s National Law Journal.

The letter argues that there is no election-year exception to the Senate’s duty to consider judicial nominations, and “[t]o recognize such an exception would set a dangerous precedent.”

Gibbons was nominated to the Third Circuit by President Nixon and served from 1970 through 1990, when he retired to head the Gibbons law firm, where he continues to practice today. His seat on the court was filled by Samuel Alito.

Judge Barry the centrist, in 3 opinions

The trumped-up controversy about Judge Maryanne Trump Barry focuses on a single opinion, her 2000 panel opinion in Farmer, the New Jersey abortion-ban case. As I detailed here, that opinion doesn’t support the ideologues’ criticism.

But there’s a broader point that’s been lost so far, too: Judge Barry has been a federal judge since 1983. She’s written gazillions of opinions. The fact that her critics rest their case on one of them is telling.

So, I recently spent some time poring back over Judge Barry’s opinions. It was boring. Unanimous panel after unanimous panel, controversy nowhere to be seen.

Here’s a good example: her 2015 opinion in Montgomery County Recorder of Deeds v. Merscorp. It was a fight over mortgage-recording fees between county deed recorders and the electronic registry industry, a high-stakes case with a raft of amici. Judge Barry’s opinion decided the case in favor of the industry on narrow, statutory grounds, affirming the district court and joining several other circuits. She acknowledged the losers’ policy arguments but said the courts’ role was not to decide if a statute was good or bad. Her opinion was joined in full by Judge Chagares (a W. Bush nominee) and Judge Krause (an Obama nominee). The more Barry opinions you read, the more you find like this.

Of course, judges sometimes disagree. In 2013, Judge Barry sat on a panel with Judges Fuentes and Cowen to decide Galarza v. Szalczyk, a civil-rights appeal brought by the ACLU challenging an immigrant’s detention. The panel majority held that local law enforcement do not have to honor immigration detainers. Judge Barry dissented, and her opinion is gloriously Barry — vigorous writing, pragmatic reasoning, limited scope. Here’s the close:

In the face of all of this, the Majority, in a sweeping
Opinion, has decided this enormously important issue. And it
did not stop there. Rather, it went on to conclude that “[e]ven
if there were any doubt about whether immigration detainers
are requests and not mandatory orders,” to read § 287.7 to
mean that a federal detainer is a command to a law
enforcement agency to detain an individual would violate the
anti-commandeering principle of the Tenth Amendment.

Maybe it would, and maybe it wouldn’t, even
assuming, with no great confidence, that the Tenth
Amendment issue should have been reached. Galarza did,
indeed, raise the issue in the District Court. The County,
however, never offered a full-throated response on the merits,
or lack thereof, of that issue, arguing instead that the
constitutionality of § 287.7 should be litigated in another,
more appropriate, case. Not unimportantly, the District Court
did not in its lengthy Opinion even mention, much less
decide, anything to do with the Tenth Amendment. Very
importantly, the United States was not heard as to it.

All of this makes me very uncomfortable. Given the
posture of the case before the District Court, I’m not sure
how, if at all, the United States could have been brought in.

What I am sure of is that we have gone very far in this very
important case without any input from the United States, and
we should pull back now. For now, though, I’m not prepared
to say, on what has essentially been a one-sided presentation,
that “shall” really doesn’t mean “shall” but, instead, means
“please.” I respectfully dissent.

One last one. Just two years after Farmer, The Third Circuit decided an employment discrimination suit brought on behalf of a group of women, Lanning v. SEPTA, and Judge Barry wrote the panel majority opinion, joined by Judge Roth. The plaintiffs had alleged that Philadelphia’s transit authority discriminated against women by requiring that transit-police applicants meet an aerobic capacity test that equated to running a mile and a half in 12 minutes. The women were represented by top civil-rights lawyers and were joined by the Women’s Law Project and the Feminist Majority Foundation as amici.

Judge Barry, purported radical pro-abortion extremist, ruled against the women. She wrote:

While not all SEPTA arrests are aerobic contests, nor are they always effectuated to apprehend “serious” criminals, the District Court found that “[a]n inability to proficiently perform any … task[] would compromise the effectiveness of the SEPTA transit police.” (emphasis added). In essence, the Court concluded what, to us, is now evident: a SEPTA transit police officer must be ready and able to apprehend not just the numerous sedentary, petty criminals, but also the fleet-footed few who, from time to time, wreak serious harm on the people of Philadelphia.

(footnotes and cite omitted). And her majority opinion concluded:

One final note. While it is undisputed that SEPTA’s 1.5 mile run test has a disparate impact on women, it is also undisputed that, in addition to those women who could pass the test without training, nearly all the women who trained were able to pass after only a moderate amount of training. It is not, we think, unreasonable to expect that women — and men — who wish to become SEPTA transit officers, and are committed to dealing with issues of public safety on a day-to-day basis, would take this necessary step. Moreover, we do not consider it unreasonable for SEPTA to require applicants, who wish to train to meet the job requirements, to do so before applying in order to demonstrate their commitment to physical fitness. The poor physical condition of SEPTA officers prior to 1989 demonstrates that not every officer is willing to make that commitment once he or she is hired. In any event, the multi-agency training which SEPTA candidates receive does not provide sufficient physical fitness training to bring an unqualified candidate up to the physical standard requirements.

This is a raging feminist jurist? Then-Judge McKee didn’t think so. He dissented, at length and with vigor, writing:

Prior to today’s decision, it was established in this Circuit, as it remains established in others, that a job requirement that has a disparate impact based upon gender could only be upheld if the relationship between the discriminatory requirement was so closely related to the essential of a given job that it could be justified as a business necessity. Today, in upholding a discriminatory application process based only upon a colorable claim of business necessity, we retreat from that standard while purporting to apply it.

In the end, these 3 cases merely illustrate what is obvious to anyone with experience practicing in the Third Circuit: the cartoonish image of Judge Barry the hellbent crusader is a fiction. The only folks who actually believe she’s a radical extremist are the radical extremists.

The Washington Post delves into Barry-gate [updated]

Fred Barbash has a story this morning on, entitled “Meet Donald’s Trump’s sister, the tough, respected federal judge Ted Cruz called a ‘radical pro-abortion extremist.'”


I’m featured — embarrassingly, as the lawyer “most notably” “stirred t[o] anger” by the Barry-bashing — and Barbash ends the story with a quote from CA3blog.

The article adds some telling details to the discussion: that Judge Barry was rated as a centrist in a study of circuit-judge ideology, that Seton Hall University publicly apologized for giving her an award, and that “antiabortion groups have been going after her for years about” the Farmer opinion.

Excellent story. Will it be the last word on this trumped-up controversy? Seems unlikely.

UPDATE: Rammesh Ponnuru of responds to the Washington Post article, and to me, here.

A sad case with a Third Circuit connection

Stu Bykofsky has a column on this morning entitled, “Inmate deserves to have courts keep their promises.” The column features Marcus Perez, an inmate who pled guilty in state court “because of bad information he was given by a judge, who urged Perez to take a plea bargain.” The judge who dispensed the incorrect information?

Judge Theodore McKee, then of Common Pleas Court, now chief judge of the U.S. Court of Appeals for the Third Circuit, said that when he told Perez he would be eligible for parole, “I was dead wrong.”

McKee told him “life” didn’t mean “life” and, “You will not die in prison.”

But the law recently had changed to “life means life,” and McKee made a grievous error.

By the time Perez learned that the judge screwed up, the case had passed from McKee’s authority, which meant that he couldn’t correct his own mistake. Perez has filed many appeals, each pigheadedly opposed – first by D.A. Lynne Abraham, and now by Seth Williams.
Sad case.
Disclosure: Perez’s court-appointed counsel is Michael Wiseman, an accomplished Third Circuit advocate who was my supervisor when he was head of the Philadelphia federal defender’s capital habeas unit and I was an assistant federal defender.

Judge Krause named by Scotusblog as 1 of 5 federal-appellate candidates for Supreme Court

Back on February 16 I posted about whether any Third Circuit judges were plausible candidates to be nominated to fill Justice Scalia’s seat on the Supreme Court. I wrote:

Let’s start with their ages. Greenaway was born in 1957, Vanaskie in 1953, Shwartz in 1961, Krause in 1968, Restrepo in 1959. Advantage Krause.

How about circuit confirmation votes? Greenway: 84-0, Vanaskie: 77-20, Shwartz 64-34, Krause 93-0, and Restrepo 82-6. Advantage Greenaway and Krause.

Demographics? Greenaway is an African American man, Vanaskie is a white man, Shwartz and Krause are white women, and Restrepo is a Hispanic man. Disadvantage Vanaskie, after that it’s hard to say.

* * *

I’ve described Judge Krause here before as “a rising star” whose initial published work has been “Supreme-Court-shortlist caliber.” My Magic 8-Ball says she’s the Third Circuit judge likeliest to get the call from a Democratic president. But my hunch is that’s a better bet for the next opening than for this one.

Today, Tom Goldstein wrote a post on Scotusblog entitled, “Five potential nominees from the federal appellate bench.” He wrote:

It is easy to identify the candidates who (i) serve on a federal court of appeals; and (ii) received unanimous Republican support in the confirmation process.  By culling based on a few other criteria – such as academic background, age, and length of experience on the appellate bench – we identified this list of five candidates, in alphabetical order:

* * *

Hon. Cheryl Krause, who serves on the Third Circuit.  Previously, she was a federal prosecutor.  She was a law clerk to two Republican appointees.  She attended Stanford Law School.

Goldstein says he will publish profiles of Judge Krause and the other four in the coming days.

(My thanks to the intrepid reader who alerted me so quickly to the Scotusblog post.)

The effort to smear Judge Barry as a radical extremist is still alive, and still wrong

Third Circuit Judge Maryanne Trump Barry is a moderate-conservative Republican centrist. After a decade as a federal prosecutor, she was nominated to the district court by President Reagan and confirmed by voice vote by a Republican-controlled Senate. Chief Justice Rehnquist appointed her to chair a Judicial Conference committee. The New York Times reports that she was nominated to the Third Circuit by President Clinton thus:

In 1999, Mr. Clinton was having a hard time getting his appointments through the Senate, and he asked Senator Robert G. Torricelli of New Jersey to find a set of judges who could be confirmed. To balance out the Democratic appointments, Mr. Torricelli chose Ms. Barry.

Again she was confirmed, again by a Republican-controlled Senate, again by voice vote.

But recently Judge Barry has become a talking point in the Republican presidential campaign debate, and conservative partisans brand her a radical extremist. It is a preposterous claim.

Republican Presidential candidate Ted Cruz has been trying for a while now to score a point against fellow candidate Donald Trump by Judge Barry, who is Trump’s sister. I’ve discussed it here and here, and I was quoted about it on here. Trump revived the controversy at Thursday’s Republican debate, noting that Cruz has been criticizing Barry and suggesting “maybe we should get a little bit of an apology from Ted.” (Trump mangled the facts, claiming that Barry had been criticized for “signing a certain bill” and asserting that Justice Samuel Alito “signed that bill.” In reality, Cruz criticized Barry for her opinion in the New Jersey abortion-case Planned Parenthood v. Farmer, and Alito concurred in the judgment.)

After the debate, prominent conservative commentators have rushed to defend join the attack on Judge Barry. First, Ramesh Ponnuro (who describes Cruz as “[a]n old friend of mine”) wrote on that “Judge Barry wrote an expansive opinion attacking and sneering at” New Jersey’s abortion-ban law, “and laying out an argument that would logically justify a constitutional right to infanticide.”

Then, former Akin Gump partner Paul Mirengoff wrote on that Judge Barry’s “position on abortion” in the New Jersey opinion was “odious.” “Cruz is right about Trump’s sister,” he claimed: “The woman Trump holds out as a model jurist is obscenely pro-abortion.” (Other similar right-wing Barry-bashing here, here, and here. [Update: and here, by him.])

Here is the reality about Judge Barry’s opinion in Farmer:

  • Judge Barry’s opinion for the court was joined in full by Judge Leonard Garth, a Nixon appointee whom I’ve never before heard accused of being an obscenely pro-abortion radical extremist.
  • Then-Judge Alito concurred in the judgment, agreeing that Supreme Court precedent compelled the result Judge Barry reached.
  • New Jersey’s attorney general declined to defend the law. The district judge judge reached the same result the Third Circuit did. The Third Circuit did not grant rehearing en banc, and the Supreme Court did not grant certiorari.
  • Ponnuro accuses Judge Barry of writing an “expansive” opinion, but in fact her opinion was limited. The plaintiffs argued that the NJ law violated equal protection and did not serve a legitimate state interest, but the opinion declined to reach either question. The district court held that the law created an undue burden on women’s constitutional rights by offering no health exception and an inadequate life-of-the-mother exception; the opinion passed up the chance to endorse either of these points, too. The opinion even expressly refused to address whether a clearly drafted prohibition of intact-dilation-and-extraction abortion would be constitutional. (How Ponnuro squares this express reservation with his claim that Judge Barry’s opinion “would logically justify a constitutional right to infanticide,” I have no idea.)
  • Judge Barry’s opinion began by frankly acknowledging “deeply held convictions by men and women of good will, convictions which we recognize and respect.” It stated, “It is not for us to decide who is right and who is  wrong as a matter of conviction or philosophy.”  It acknowledged that “there are unquestionably numerous ethical, philosophical, and moral issues surrounding abortion.”
  • The opinion went into graphic detail describing how the fetus dies during various abortion procedures, repeatedly noting that during the procedure the fetus may still have a heartbeat. It said in passing, “whatever one may think of abortion in general and ‘partial birth abortion’ in particular.” It speculated that the purpose of the NJ law was “to dramatize to the public the ugly nature of abortions of all types.” By contrast, the most favorable thing the opinion says about abortions is that Supreme Court precedent establishes a constitutional right to have one. I don’t see a single pro-abortion or pro-choice sentence in the opinion.
  • It is impossible for me to tell from the opinion whether Judge Barry would vote for a late-term abortion ban if she were a legislator. To the extent the opinion offers any clues, I’d guess that Legislator Barry would vote in favor of such a ban if it were competently drafted.

Judge Barry’s Farmer opinion is aggressively limited. It treats pro-life policy views with respect but decides the appeal based on logic and precedent, not policy. The opinion is competent, professional, and utterly mainstream. If this opinion makes Judge Barry a radical extremist, then so is 98 percent of the federal judiciary.

One final point.

Back in 1998, when Judge Barry was still a district judge, she presided over Greenhut v. Hand, a case in which a pro-life volunteer at a pregnancy-services center sued a defendant who had threatened her. The pro-life volunteer sued under the Freedom of Access to Clinic Entrances Act, a law passed in response to growing violence against abortion providers. The opinion noted that this case was the first time that FACE was invoked to penalize threats against a pro-life volunteer. The defendant argued that FACE did not apply because the act protected only persons providing reproductive health services and the pro-life volunteer wasn’t.

Judge Barry emphatically rejected the defendant’s arguments and granted summary judgment in favor of the pro-life protester. The opinion has not one hint of disapproval of the plaintiff’s pro-life views, not a whisper of approval for the defendant’s pro-choice views.

Obscenely pro-abortion? Radical extremist? Nonsense.

Even more reason to question that Judge Barry is a radical extremist

Ted Cruz recently attacked Donald Trump by calling his sister, Third Circuit Judge Maryanne Trump Barry, a “radical pro-abortion extremist” for voting to strike down a New Jersey late-term abortion ban. (I discussed it here.) Cruz left out the fact that Nixon appointee Leonard Garth joined her opinion and W. Bush appointee Samuel Alito joined the result.

Now, David Eldridge further undermines the Barry-is-a-radical-extremist smear with this post at, pointing out that Barry testified before the Senate Judiciary Committee in effusive support of Alito’s Supreme Court nomination:

Appearing on Capitol Hill before the Senate Judiciary Committee, Barry praised Samuel Alito, then a colleague on the United States Court of Appeals for the Third Circuit, as “a man of remarkable intellectual gifts.”

Alito, she told senators, “set a standard of excellence that was contagious, his commitment to doing the right thing, never playing fast and loose with the record, never taking a short cut, his emphasis on first-rate work, his fundamental decency.”

“You have heard the most glowing things said about Sam as a colleague on our court. I embrace every glowing statement,” she testified. “Let me just conclude with this … He is a man with impeccable legal credentials. He is a fair-minded man, a modest man, a humble man, and he reveres the rule of law.”

Maybe Barry supported Alito only because she figured he was a radical pro-abortion extremist, too?

Any Third Circuit short-listers for the Supreme Court?

The national media is filled with stories speculating about President Obama’s likeliest potential nominees for the Supreme Court vacancy created by Justice Scalia’s death. No Third Circuit judges have been mentioned in any of the stories I’ve seen. Does the Third Circuit have any plausible candidates? Here’s a quick look.

Obama has picked five Third Circuit judges: Greenaway, Vanaskie, Shwartz, Krause, and Restrepo. (The three active Third Circuit judges appointed by Bill Clinton are all over 60, probably too old to get a serious look now.)

Let’s start with their ages. Greenaway was born in 1957, Vanaskie in 1953, Shwartz in 1961, Krause in 1968, Restrepo in 1959. Advantage Krause.

How about circuit confirmation votes? Greenway: 84-0, Vanaskie: 77-20, Shwartz 64-34, Krause 93-0, and Restrepo 82-6. Advantage Greenaway and Krause.

Demographics? Greenaway is an African American man, Vanaskie is a white man, Shwartz and Krause are white women, and Restrepo is a Hispanic man. Disadvantage Vanaskie, after that it’s hard to say.

Ability? Look, I practice in this court, so I’m not saying anything stupid here. All five are widely respected, and whether the administration sees any or all as Supreme Court-caliber legal minds is anyone’s guess. And ideology matters but no one knows how yet, so I’ll punt there, too.

I’ve described Judge Krause here before as “a rising star” whose initial published work has been “Supreme-Court-shortlist caliber.” My Magic 8-Ball says she’s the Third Circuit judge likeliest to get the call from a Democratic president. But my hunch is that’s a better bet for the next opening than for this one.

Obama moving ahead with circuit nominations — a Third Circuit nominee on the horizon?

Last month, I predicted:

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.

President Obama still hasn’t named a nominee for the Rendell seat, but new reporting by Charlie Savage in yesterday’s New York Times suggests that the dynamic I described has begun to play out for other circuit openings:

At the time, there were eight vacancies on the appeals courts, but Mr. Obama had submitted the name of only one nominee: Luis Felipe Restrepo, a District Court judge in Philadelphia. He had Republican backing, and the Senate confirmed him last month.

Mr. Obama submitted no other names, according to administration officials, because the vacancies were in states that had at least one Republican senator, and those senators had refused to preapprove any nominee.

Traditionally, preapproval is part of the nomination process. The Senate Judiciary Committee generally does not schedule a hearing for a nominee without the consent of both senators from the state in which the seat is based, regardless of party.

Starting last month, Mr. Obama quietly broke with that tradition. He has now submitted nominees to fill four of those longstanding vacancies, even though none had preapproval from Republican senators. In an interview last week, Neil Eggleston, Mr. Obama’s White House counsel, said the president had moved forward because he hoped Republican senators would permit at least some to go through.

“The calendar was running out, and it was time to get moving,” Mr. Eggleston said. “At some point the process just has to get started.”

The article paints a mixed picture on Obama’s success filling circuit openings:

If he makes no more appointments to the regional appeals courts, Mr. Obama will leave at least 12 vacancies to his successor, counting seats that recently came open or are expected to by the end of the year. By that measure, Mr. Obama’s appeals court record would be about the same as Mr. Bush’s and better than that of Mr. Clinton — who also had trouble with a Republican Senate and left more than two dozen seats open.

But by other measures, Mr. Obama is on track to be a historical anomaly. He has appointed just 48 judges to the regional appeals courts so far, while Mr. Bush and Mr. Clinton each appointed more than 60.

The gap between Mr. Obama’s numbers and his recent predecessors’ occurred in the final two years of their presidencies. Mr. Obama appears likely to appoint the fewest such judges during that period of any president since Congress created the courts of appeal in 1891, with one exception: President Grover Cleveland, who named none in the two years before he left office in 1897.

But Cleveland had no vacancies to fill.

Judge Barry is back in the campaign headlines

Donald Trump put his sister, Third Circuit Judge Maryanne Trump Barry, squarely in the national media spotlight last year when he told interviewers she’d be a phenomenal Supreme Court justice.

Now that quote has Judge Barry back in the headlines, but this time it’s neither as positive nor as honest. Brent Johnson at (among others) reports that fellow Republican candidate Ted Cruz today said:

Now, it’s good to stand with your sister. But Donald’s sister was a Bill Clinton-appointed federal appellate judge who is a radical pro-abortion extremist,” said Cruz, a Princeton University graduate. “Indeed, she wrote an opinion striking down restrictions on partial birth abortion, saying that restricting partial birth abortion was irrational. Even among liberal judges, that position is extreme, and Donald said, his extreme, abortion-supporting sister would make a terrific Supreme Court justice.

Judge Barry a radical extremist? Cruz isn’t the first Republican to float that one, but it’s still pure applesauce.

The case Cruz is bashing Barry for is Planned Parenthood of Central NJ v. Farmer, in which Judge Barry wrote the opinion striking down New Jersey’s late-term abortion ban.

Just one question. If Barry’s ruling striking down the New Jersey law was extreme even among liberal judges, what does Cruz make of the fact that the Third Circuit judge who concurred in the judgment in that case, opining that Supreme Court precedent “compels” the result Barry reached, was a fellow named Alito?


“Obama’s New Appellate Court Nominees Should Be Blocked”

Still no nominee for Judge Rendell’s seat, but in the past week President Obama has named four circuit court nominees (two 7th Circuit, one 8th, and one 11th).

Conservative commentators are calling for Republicans in the Senate to block any federal appellate nominations until the next presidency. The title of this post is from Paul Mirengoff’s post at the influential conservative legal blog PowerLine, in which he begins:

In his final year in office, President Obama remains in a position to continue his project of transforming America. He can do so through Executive Orders, for example.

Republicans, though, are in a position to close the book on one front — the transformation of the federal judiciary. In November 2014, the GOP took control of the Senate. Consequently, no federal judge can be confirmed without Republican complicity. Indeed, as a practical matter, no federal judge can be confirmed unless Senate Judiciary Committee Chairman Charles Grassley allows it.

Until now, unfortunately, Grassley’s inclination has been to pat himself on back for confirming liberal nominees to important courts. I wrote about this here, in connection with the confirmation of Luis Felipe Restrepo, an aggressive left-winger, to the U.S. Court of Appeals for the Third Circuit.

It’s time for Grassley to stop surrendering.

Mirengoff closes by urging his readers to call Senator Grassley’s office to urge him to block Obama’s new appellate nominees.

Mirengoff links to a post by Ed Whelan at National Review which says, “If Senate Republicans are not to indulge in a game of unilateral surrender, these nominations ought to be dead on arrival.” Whelan argues that Democrats only confirmed two appellate nominees in 2008 and both were the product of bipartisan compromise, but “there is no evidence that suggests that Obama or Senate Democrats negotiated in advance with Senate Republicans over any of the recent nominees.” (He’s not talking about Restrepo, whose nomination clearly was negotiated with Republicans.)

I posted earlier that I’m skeptical that any nominee for Judge Rendell’s seat will be confirmed in 2016, and commentary like this does nothing to diminish my skepticism.

Guess which circuit holds the fewest oral arguments. (Hint: it’s the same one that issues the fewest published opinions.)

In the 12 months before September 30, 2014, the Third Circuit decided 2,402 cases. It heard oral argument in 238 of them, or 9.9% of its cases. The other 90.1% it decided without oral argument.

So what does that mean?

Well, the Third Circuit heard the fewest oral arguments in 2014 of any circuit. (The circuit-comparison stats all exclude the Federal Circuit.) The D.C. Circuit, which decided about a fifth as many cases, held more oral arguments. The Eighth Circuit, which decided a similar-but-smaller number of cases versus the Third Circuit, held 169 more oral arguments, or over 40% more. Even the Fourth Circuit, the only circuit that held oral argument in a (barely) lower percentage of its cases, held over 100 more arguments. When it comes to number of cases decided on the merits, the Third Circuit ranks 8th out of 12 circuits, middle-of-the-pack. Overall, the Third Circuit granted oral argument half as often as its sister circuits.

What about 2013? Same picture, even a little more extreme. In the year ending in 2013, the Third Circuit decided 2,715 cases and heard oral argument in 225, or 8.3%. Again, fewer oral arguments than any other circuit, and this time the Third Circuit had the lowest argument rate of any circuit.

[For 2015, the AOC hasn’t done the math yet. The raw numbers they’ve released for the 12 months before June 30, 2015 — the most recent data available — show the Third Circuit still holding the fewest oral arguments of any circuit, with an argument rate of 10.7%.]

Whoa, right? But there’s more.

Let’s look at how the Third Circuit’s argument numbers have changed over time. This graph shows the number of oral arguments the court has heard each of the past 17 years:


And here is the percentage of the court’s cases in which it heard argument over the same period:


That second graph shows that the plunge in oral arguments isn’t caused by a drop in the total number of cases. (To the contrary, the court is deciding on the merits 30% more cases per year compared to the late 90s.)

So it’s clear what we’re looking at isn’t any statistical blip: this is a robust trend, a historically significant transformation of the functioning of the court. The Third Circuit hears half as many oral arguments as it did a decade and half ago. A Third Circuit litigant around 2000 was three times more likely to get oral argument than she is today.


Now, I’m not the first one to notice this trend. Howard Bashman wrote this column in the Legal Intelligencer — after a year (2011) when the court heard 82 more arguments than it did in 2014 — arguing that “the growing rarity of oral argument at the Third Circuit should be viewed with increasing concern.” He concluded:

It may require at least a bit more work from the Third Circuit’s judges to slightly relax their current extreme reluctance to grant oral argument, but I cannot help but think that the extra work would yield great benefits in the form of stronger rulings and more satisfied litigants who will know that, win or lose, their arguments have been heard.

As a CA3 practitioner myself, there have been a few times I’ve been disappointed when the Third Circuit decided a case of mine without argument, cases where I believed I had raised substantial appellate issues. But, since I started my practice in 2010, the Third Circuit has heard oral argument in 30% of my cases. So I can’t complain, I’ve actually been fortunate.

But there’s still more to the story.

I’ve blogged here before about how the circuit’s rates for published opinions have dropped and are the lowest in the country. So, how do recent oral argument rates and publication rates compare? Take a look:



Both curves are down from 2009, cratered in 2013, and rebounded a bit in 2014.

Curiously, the circuit’s reversal-rate curve is similar, too:


Coincidence? Or are the similar-looking argument and publication graphs related?

Back in 2011, former Third Circuit Judge Timothy Lewis wrote (the emphasis is mine):

There are some very practical consequences to leaving so many judicial openings unfilled, too, and they have to do with the court’s business. The district courts are the federal trial courts; the circuit courts are where appeals are heard. While the Supreme Court is the court of last resort in the federal system, it only takes a handful of cases each year. So a delay in confirming judges for these lower federal courts means that the business of justice is slowed. A court with two or three vacancies simply cannot meet the demand with the efficiency the parties deserve and that the rules and procedures mandate.

It’s natural to wonder if the plunging rates for argument and publication are related to the unconscionable delays in filling the seats vacated by Judges Sloviter and Scirica in 2013 — over a year before Judge Krause was commissioned, over 2.5 years before Judge Restrepo was. The court faces still a similar delay now, seven months and counting since Judge Rendell went senior, still waiting for a nominee.

As I noted above, the court is deciding 30% more merits cases now than it did in the late 90s — about 750 more per year — yet it hasn’t gotten a single new seat since 1990. When you take a busy court, jack up its caseload by 30%, add zero new judges, and drag your heels filling openings — well, at some point, as Judge Lewis said, there are consequences.

My hypothesis is that we’re looking at two consequences: fewer oral arguments and fewer published opinions. Now, these trends didn’t just appear in 2012 and they’re not limited to the Third Circuit. They could well be unrelated to caseloads and to each other. And the Third Circuit isn’t the only circuit struggling with vacancies. So I haven’t proven that hypothesis here.

But, if I am right, then the root of the problem here isn’t the court: it’s Congress.


[Notes: I’m grateful to top CA3 advocate Brett Sweitzer, among others, for raising my awareness of the oral argument drop at a recent forum of the Third Circuit Bar Association. The oral-argument data cited in this post are from AOC table B-10. The decided-cases data and the 6/30/2015 raw data come from B-1, reversal data come from B-5, and opinion-publishing data come from B-12.]

Restrepo’s first argument next week

Next Friday, brand-new Third Circuit Judge L. Felipe Restrepo will sit for the first time as a member of the court. He will sit on a panel with Judges Vanaskie and Shwartz for 3 arguments. This being the Third Circuit, it seems fitting that the first argument case on the docket that morning will be an asbestos-litigation appeal.

The court has a total of four panels sitting next week, and there’s not a single senior or visiting judge in the bunch.

Should judges recuse when their fellow judge has “a piece of the action?” — PA judges may be learning, but CA3 judges already knew

The Third Circuit issued a short little unpublished opinion in a bankruptcy appeal last week. The most interesting thing about it was that the panel was three judges from other circuits; I wrote about the case before oral argument, here. After that post, a couple intrepid readers helped me figure out that the apparent reason all the Third Circuit judges recused was that one of them had a peripheral financial stake in the outcome.

If the wisdom of the Third Circuit’s court-wide recusal were not clear before, it sure is clear now.

Today’s Philadelphia Inquirer features this story by Jessica Parks, about the controversy that’s erupted after one county judge refused to recuse himself from a case in which one of his fellow county judges had a massive financial interest. The Pennsylvania Superior Court recently split evenly over whether the judge’s failure to recuse was error. Even the lawyer who’s defending the trial judge’s ruling was quoted saying:

“The message was sent loud and clear to every lawyer and every judge in the state. Next time someone is in front of any court in Pennsylvania where one of the judges has a piece of the action on that case – no one’s going to ever do it again.”

“Next time.” The Third Circuit judges did the right thing this time. Reading about the Pennsylvania judiciary’s latest embarrassment, I bet they’re glad they did.

The 2015 judicial financial disclosure reports are out, and Chief Judge McKee dissents

Here is an interesting new article by Zoe Tillman in the National Law Journal about the wisdom of forcing federal judges to publicly reveal the banks where they hold accounts. It features Third Circuit Chief Judge Theodore McKee, whose 2015 report stated: “I see no reasoned or legitimate reason for requiring disclosure of where bank accounts are held,” and “As far as I am concerned, this is an invitation to identity theft and fraud and will not be corrected until someone is victimized by this mindless requirement!!”

Conflict-searchers and identity thieves can find the the 2015 reports here. (My 2014 post about the disclosure reports is here.)

The article reported that Chief Judge McKee did not expect his protest to change the status quo, but, channeling his inner legal blogger, “I feel better about doing something that I don’t believe in if I register my protest.”

Senate confirms Restrepo, finally

The Senate has confirmed L. Felipe Restrepo to the Third Circuit. He will fill a judgeship that has been vacant since Judge Scirica took senior status on July 1, 2013, 924 days ago.

UPDATE: the vote for confirmation was 82 to 6.

Recent Third Circuit judges received their commissions within a few days of their confirmation votes, so we should have a new Third Circuit judge by the end of the week, maybe tomorrow.

Brookings blogger thinks Restrepo will be Obama’s last circuit appointment

Russell Wheeler has this blog post at Brookings, entitled “No further Obama impact on the make-up of Courts of Appeals.”

Wheeler is a former deputy director of the Federal Judicial Center. The balanced and informative post begins:

The Senate is set to confirm U.S. District Judge L. Felipe Restrepo to the Third Circuit Court of Appeals on January 11th, 425 days after his nomination. Median days from nomination to confirmation of Obama’s 55 circuit appointees (counting Restrepo) is 229, compared to 219 for Bush’s 60 appointees and 139 for Clinton’s 65 appointees.

There will be little need to update these figures, because any 2016 circuit confirmations after Restrepo are unlikely. His confirmation will also mark the high point of Obama’s overall impact on the makeup of the courts of appeals.

Certainly reason for pessimism that Judge Rendell’s seat will be filled any time soon.

Senate finally schedules floor vote on Restrepo nomination

This past spring, Senator Pat Toomey was getting battered over the delay in scheduling a committee hearing on the Third Circuit nomination of Judge Luis Felipe Restrepo. In May, Toomey’s office responded in part by assuring the public that Toomey was “confident he will be confirmed by year’s end.”

Although Toomey did not say it at the time, it now appears that “by year’s end” meant that Toomey had already decided to let the nomination languish until year’s end. Thus in the months that followed, he ignored call after call after call after call to ask the Republican leadership for a confirmation vote.

Now, just as critics predicted, when earlier this week Toomey finally did ask for a confirmation vote, it was scheduled right away. The floor vote on Restrepo’s nomination is set for January 11, 2016.

I’m happy for Judge Restrepo that he’s getting a vote finally. And it’s great for the Third Circuit that one of its vacancies will (presumably) be filled. But I’ll never believe that it shouldn’t have all happened half a year sooner.



Happy Birthday, Restrepo nomination!

Today’s New York Times features this editorial slamming Senate Republicans, and PA Senator Toomey in particular, for the delay in confirming Judge L. Felipe Restrepo. Judge Restrepo was originally nominated to the Third Circuit a year ago yesterday.

It’s a powerful editorial. It urges Senate Democrats to “make these inexcusable delays a national issue,” and it concludes:

With each day that passes without a vote on Judge Restrepo and other nominees, Republicans undermine the justice system, and the biggest victims are ordinary Americans who cannot count on fully functioning courts.

Also today, P.J. DAnnunzio has this story in the Legal Intelligencer, headlined, “One Year After Nomination, Restrepo Still Not Confirmed.” It quotes a law professor blaming Toomey for the delay: “Either he’s not pushing or he doesn’t know how to push.”

Third Circuit’s judicial emergency, on and on

The Third Circuit’s judicial emergency is the second-oldest circuit emergency in the country. Only the Fifth Circuit has had an emergency for longer. Judge Scirica went senior in July of 2013, and his seat remains empty, well over two years later.

And no one has even been nominated yet for the Third Circuit’s second empty seat, fully four months after Judge Rendell went senior, and nine months after she announced that she would.

The upshot? Third Circuit IOP 3.1 provides:

Unless there is a judicial emergency, each panel includes either two active judges of this court or one active judge and one senior judge of this court.

But because of the judicial emergency, the Third Circuit’s active judges are now playing a radically smaller than normal role in shaping its precedent: four out of the last five CA3 published opinions were issued by panels with a single active judge and two senior judges.

The last Republican administration forcefully condemned delays in confirming its judges. It blasted the idea that it was okay “to leave these critical seats empty.” It said, “the American people deserve better” It said, “we need our government to be at full strength.”

We still do.

Leahy urges Toomey to ask for Restrepo vote

Senator Patrick Leahy (D-Vt.) is keeping the heat on Senator Pat Toomey over the mind-boggling delay of the nomination of Judge L. Felipe Restrepo to the Third Circuit. In this statement earlier this week on federal judicial nominations, Leahy singled out the Restrepo delay — 348 days and counting, and compared it with the 183 days it took Democrats to confirm Bush nominee Judge Thomas Hardiman:

One of those vacancies is an emergency vacancy on the U.S. Court of Appeals for the Third Circuit in Pennsylvania.  Judge Luis Felipe Restrepo is nominated to fill the vacancy and he has strong bipartisan support from his home state Senators, Senator Toomey and Senator Casey.  At Judge Restrepo’s hearing, Senator Toomey stated that “there is no question [Judge Restrepo] is a very well qualified candidate to serve on the Third Circuit” and underscored the fact that he recommended that the President nominate Judge Restrepo.  Once confirmed, Judge Restrepo will be the first Hispanic judge from Pennsylvania to ever serve on this court and only the second Hispanic judge to serve on the Third Circuit.

There is absolutely no reason to delay a vote on Judge Restrepo’s confirmation, and yet his nomination has been pending on the floor for over three months.  Since he was first nominated, Judge Restrepo’s nomination has been pending for a staggering 348 days.  The National President for the Hispanic National Bar Association, which strongly supports Judge Restrepo’s nomination, wrote last week in the HuffingtonPost about the inexcusable delay in his confirmation.  I ask unanimous consent to include a copy of this article in the Record at the conclusion of my remarks.

Contrast Senate Republican’s treatment of Judge Restrepo with President Bush’s nominee to the Third Circuit, Judge Thomas Hardiman, who was nominated in the last two years of the Bush presidency.  Judge Hardiman was confirmed in nearly half the time Judge Restrepo has been waiting, taking only 183 days from nomination to his confirmation.  Furthermore, it took only 7 days for Judge Hardiman to receive a confirmation vote once he was reported out of the Senate Judiciary Committee.  Judge Restrepo has been pending on the floor for 109 days – 15 times longer than Judge Hardiman.  I hope the Republican Senator from Pennsylvania will implore his leadership to bring this highly qualified nominee up for a vote without further delay.

And two earlier pieces of note:

Huffpost post by the president of the Hispanic National Bar Association op-ed by a writer from Center for American Progress



Judge Krause discussing ethics Nov. 13

Third Circuit Judge Cheryl Ann Krause is leading an ethics discussion over lunch at a White Collar Practice Conference being put on by the Pennsylvania Criminal Defense Lawyers. The conference will be at the Union League in Philadelphia. The luncheon with Judge Krause will be on Friday, November 13 at 12:40.  Attendees get 1/2 hour of CLE credit, too.

Some notable Third Circuit practitioners also are presenting at the conference, including Ellen Brotman, Lawrence Lustberg, and Robert Zauzmer.

Details and registration here.

“Some people want our next president to be a woman. Some people want our next president to be a Trump. Ladies and gentlemen, I present to you the next president of the United States: Judge Maryanne Trump Barry!”

Third Circuit Judge Barry spoke earlier this week at a D.N.J. US Attorney’s event. David Lat — managing editor at Above the Law, author of Supreme Ambitions, and confessed creator of the spunkiest legal blog ever — was there and posted this report.

The title of this post is from US Attorney Paul Fishman’s introduction of Barry; here is Lat’s account:

Judge Barry, the older sister of real estate magnate turned presidential candidate Donald Trump, is one of my favorite judicial divas. Last night, however, she was not as diva-licious or controversial as I was expecting. For example, she made no allusions to her little brother’s polarizing presidential bid. (But Paul Fishman did in introducing her: “Some people want our next president to be a woman. Some people want our next president to be a Trump. Ladies and gentlemen, I present to you the next president of the United States: Judge Maryanne Trump Barry!”)

In her remarks, Judge Barry emphasized themes of public service and humility. She spoke about how nervous she was when she first started work as an assistant U.S. attorney, confessing that when asked to write her first appellate brief, “I didn’t know what an appellate brief was!” At her first oral argument, during the defense counsel’s eloquent presentation, she panicked and wrote a note to her supervisor sitting next to her: “What do I say?” He advised her to get up, introduce herself, and argue that the evidence was overwhelming. When she did that, Judge John Gibbons responded by saying, “Frankly, counselor, I am underwhelmed.” It was not her finest hour.

But with hard work, and the help of a great mentor — chief of appeals John Barry, whom she later married — she got better over time. She served as chief of appeals herself, and then as first assistant U.S. attorney, before her appointment to the federal bench.

Oh, and some guy named Alito spoke, too.

More criticism of the Restrepo-confirmation delay

The Los Angeles Times has this story today (headline: “Republican Senate accused of ‘slow walking’ Obama’s judicial nominees”) that features the delay in confirming Judge Restrepo to the Third Circuit.

Yesterday, Paul Gordon of People for the American Way posted this informative analysis of the current delays in federal judicial confirmations, also featuring Restrepo. One telling passage (emphasis in original):

Failing to confirm judges is not at all the norm even when the Senate and the White House are held by different parties.  A useful basis of comparison is George W. Bush’s final two years in office, when Democrats took over the Senate after the 2006 midterms.  A week after those elections, Senator Patrick Leahy – who was about to become chairman of the Judiciary Committee – criticized Republicans for blocking votes on more than a dozen of Bush’s qualified nominees.  Partisanship took a back seat to responsible governing.

So in 2007, Leahy and new Majority Leader Harry Reid worked together to make sure the Judiciary Committee and full Senate fulfilled its constitutional responsibilities.  During those two years, the Senate vetted and confirmed 68 of Bush’s circuit and district court nominees.  In fact, the Democratic Senate had already confirmed 29 of Bush’s judges by this same point in the year (October 1 of 2007), a number that will increase to 33 over the weekend.  In stark contrast, the McConnell Senate has so far confirmed only six Obama judges. No matter how you look at it, 33 ≠ 6.

It’s becoming increasingly clear that, when Senator Toomey’s office said way back in May that he was confident Restrepo would be confirmed “by year’s end,” Toomey knew already the Third Circuit would suffer from this inexplicable delay.

Leahy: I hope Toomey will get a firm commitment to schedule a confirmation vote this week for Restrepo

Senator Patrick Leahy (D-Vt), ranking Democrat on the Senate Judiciary Committee, released this statement yesterday:

Last week, I spoke about Senate Republicans’ virtual shutdown of the judicial nominations process since they took over the majority.  Their refusal to respond to the urgent needs of our independent Third Branch is threatening to harm our justice system and rob the judiciary of outstanding public servants.

One glaring example of this harm is the unnecessary delay of Judge Luis Felipe Restrepo, who was nominated last year to fill an emergency vacancy on the U.S. Court of Appeals for the Third Circuit in Pennsylvania.  Judge Restrepo was unanimously confirmed two years ago by the Senate to serve as a district court judge.  During his tenure as both a Federal district court judge and as a Federal magistrate judge, he has presided over 56 trials that have gone to verdict or judgment.  He is superbly qualified, and I have heard no objection to his nomination.  Despite his outstanding credentials and experience, it took the Republican majority seven months just to schedule a hearing in the Judiciary Committee for this qualified nominee.

Judge Restrepo has bipartisan support from both Pennsylvania Senators, and was voted out of the Judiciary Committee unanimously by voice vote.  Once confirmed, Judge Restrepo will be the first Hispanic judge from Pennsylvania to ever serve on this court and only the second Hispanic judge to serve on the Third Circuit.  He has the strong endorsement of the non-partisan Hispanic National Bar Association.  At his confirmation hearing in June, Senator Toomey stated that “there is no question [Judge Restrepo] is a very well qualified candidate to serve on the Third Circuit.”  Senator Toomey described Judge Restrepo’s life story as “an American Dream” and recounted how Judge Restrepo came to the United States from Columbia and rose to the top of his profession by “virtue of his hard work, his intellect, his integrity.”  I could not agree more.

Given his remarkable credentials, wealth of experience, and strong bipartisan support, you would think the Senate would have confirmed Judge Restrepo months ago.  Instead, he was nominated for a judicial emergency vacancy back in November 2014, and for 10 months since his nomination, he has been denied a vote on his confirmation.  No Senate Democrat opposes a vote on his nomination.  The only ones who are holding up his nomination are the Senate Republicans.  I have heard Senator Toomey indicate his strong support and that he would like to see Judge Restrepo receive a vote.  I know Senator Toomey can be a fierce advocate for issues he cares passionately about, and I hope he will get a firm commitment from the Majority Leader to schedule a confirmation vote this week.

In addition to Judge Restrepo’s nomination, there are 12 other non-controversial judicial nominees pending on the Executive Calendar waiting for a vote.  All of them were approved by voice vote by the Judiciary Committee.  There is no reason for Republicans to block these nominees.  More than eight months into this new year, Republican leadership has allowed votes on just six judicial nominees.  By this time in 2007, when I was Chairman of the Judiciary Committee, we had confirmed 29 judges nominated by President Bush.  That is nearly five times more nominees than what this Republican Majority has accomplished so far this year.  Because of the Republicans’ virtual shutdown of the confirmation process, judicial vacancies have increased by more than 50 percent – from 43 to 67.  This is demonstrates an astounding neglect of the needs of our independent Third Branch.

Instead of confirming Judge Restrepo and the 12 other non-controversial judicial nominees on the Executive Calendar, Republicans are talking about another doomed vote on harmful legislation to block women’s health care choices.  Republicans had already forced a failed “show vote” to defund critical health services for women, spending two days on that unnecessary political exercise.  Although Senate Republicans campaigned last year on the promise that they would govern responsibly if they won the majority, they continue to prioritize divisive issues that play only to their political base and yield no results for the American people.

I am urging Republican leadership to reverse course.  Confirm Judge Luis Felipe Restrepo without further delay.  And then confirm the other 12 non-controversial judicial nominees pending on our Executive Calendar.


Restrepo committee vote delayed

As feared, this morning the Senate Judiciary Committee postponed a vote on the Third Circuit nomination of L. Felipe Restrepo, without explanation. Apparently this means no vote until after after July 4 at the earliest.

Alliance for Justice yesterday posted here criticizing the judicial-nominations delays. And informative coverage yesterday on Latin Post here.

Not so fast: will Restrepo committee vote happen tomorrow after all?

I posted yesterday that the Senate Judiciary Committee has scheduled a vote on L. Felipe Restrepo’s Third Circuit nomination for tomorrow. The committee’s website still shows the Restrepo vote scheduled, but several sources now are reporting that it may be delayed.

Yesterday, P.J. D’Annunzio reported in the Legal Intelligencer (emphasis added):

A U.S. Senate Judiciary Committee vote to confirm Judge Luis Felipe Restrepo to the U.S. Court of Appeals for the Third Circuit is likely to be pushed back, once again delaying the already-drawn-out confirmation process.

While no official word has been given that a request for a delay has been made by committee members, Beth Levine, spokeswoman for the Judiciary Committee chairman, U.S. Sen. Chuck Grassley, R-Iowa, said in an email that it was safe to assume the confirmation vote for Restrepo will be held over.

In the article, courts activist Glenn Sugameli calls on Senator Toomey to ask the committee chair to hold the vote as scheduled (Keystone Progress has done so as well, as reported here), and this People for the American Way blog post argues that non-committee members have done so in the past.

Restrepo scheduled for committee hearing, finally

At long last, the Senate Judiciary Committee has set a hearing for the Third Circuit nomination of L. Felipe Restrepo. The hearing is set for Wednesday, June 10 at 1:30.

Judge Rendell announced earlier this year that she is taking senior status in July, so it’s possible that Judge Scirica’s seat (empty almost two years now) will be filled before Rendell’s opens. Dare to dream.

Restrepo nomination obstacles removed

The Pittsburgh Post-Gazette reported tonight that Senator Pat Toomey has submitted his blue-slip to allow the Third Circuit nomination of L. Felipe Restrepo to move forward. Toomey’s move followed the Judiciary Committee’s announcement today that it had completed its background investigation, which in turn came on the heels of a week of media Toomey-battering over the delay.

Next step: committee hearing. Nothing scheduled yet.

A fine article on the role of clerks

I don’t often re-post materials posted on How Appealing, on the assumption that anyone into appeals enough to read my modest little blog must also be reading his. (And you should be if you ain’t.)

But here’s an article worth making an exception for, despite its snoozy title: “The Management of Staff by Federal Court of Appeals Judges,” by Duke law professor Mitu Gulati and CA7 judge Richard Posner.

The article is explains how federal appellate judges use clerks, permanent clerks, secretaries, and staff counsel. It describes a standard model and then describes common variations from the model, and its based on about 20 in-person interviews of judges, plus another about 50 phone interviews.

For anyone who practices regularly in federal appeals — especially the many appellate practitioners who did not clerk for federal appellate judges themselves  — this article sheds very useful light on how cases get decided.

Even as a former appellate clerk myself, I have to actively resist the habit of thinking of the judges as the only audience for my briefs. Maybe those judges have seen cases like yours by the dozens, but their clerks haven’t, especially for cases where the briefing is completed in the fall and winter. And, conversely, those clerks often are very adept at spotting your who-cares Bluebook errors.

A brief-writer who ignores the role clerks will play in deciding her case reduces her chances of winning.

Toomey supports Restrepo’s CA3 nomination. Now he’s blocking it.


United States Senator Pat Toomey (Gage Skidmore wikimedia commons cc-by-sa 3.0)

US Senator Pat Toomey is blocking a hearing on the Third Circuit nomination of L. Felipe Restrepo, according to David Hawkings at Roll Call. In a post today, Hawkings reported that PA’s Republican Senator has not returned his blue slip on Restrepo’s nomination. Per Senate procedures, Toomey’s action leaves the nomination in limbo.

This is a shocking. In November,Toomey loudly endorsed Restrepo’s nomination, saying in a press release:

I am pleased that President Obama today has nominated Judge Luis Felipe Restrepo to serve our nation on the Third Circuit Court of Appeals,” said Sen. Toomey.  “As both a federal magistrate and district judge, Judge Restrepo has served the people of Pennsylvania honorably and with distinction.  He also is dedicated to his community by giving his free time to the Make-a-Wish Foundation.  Sen. Casey and I recommended Judge Restrepo to the White House for a seat on the federal district court, and I believe that he will also make a superb addition to the Third Circuit based in Philadelphia.

Now, almost six months later, Toomey’s office told Hawkings the Senator still supports the nomination and “hopes it gets done this year.”  His office “declined to discuss the missing blue slip.”

A follow-up report by Jennifer Bendery that just posted on Huffington Post added this embarrassing exchange:

When asked Tuesday if he’s withholding his blue slip, the Republican senator gave The Huffington Post a confusing answer.

“No, I’m not. Well, let me explain how that works to you. But I’ve got to run for this lunch,” he said, walking away quickly. “But I support his confirmation.”

Toomey said he didn’t have any new concerns about Restrepo and that he would turn in his blue slip. At some point.

“I will be submitting it at the appropriate time,” he said, before disappearing into an elevator.


Hawkins offers an explanation why Restrepo’s nomination is being blocked a senator who supports it:

Progressive advocacy groups and some Senate Democrats suspect Restrepo is being held hostage by the GOP as the latest act of retribution for Obama’s executive action on immigration last fall, which sought to grant an indefinite reprieve from deportation to millions of people in the country illegally.

The initial Republican approach — withholding funding from the Department of Homeland Security unless the president reversed course — ended up as a high-profile collapse this winter, and the Senate GOP’s fallback effort to deny Loretta Lynch’s confirmation as attorney general after she said she would support Obama’s policy has come to naught this spring. Now, some on the right are suggesting the best possible Plan C is preventing new judges on the appeals courts.

Also today, a Philadelphia pastor and activist with People for the American Way had an op-ed on entitled, “Why the holdup on Third Circuit judge nominee?”

H/t Glenn Sugameli of Judging the Environment.

New liberal report: “Republicans bringing judicial confirmation process to a standstill”

Yesterday the Alliance for Justice issued this report, summarized here, criticizing Senate Republicans’ failure to fill federal judicial openings, including the Third Circuit judicial-emergency seat for which L. Felipe Restrepo has been nominated.

From the Alliance report:

Rather than working to ensure that our federal courts have enough judges to fairly administer justice, Republicans have adopted a slow-walk approach at each point of the nomination and confirmation process—from working to fill vacancies in their own states, to processing nominees through committee, to holding confirmation votes on the Senate floor. As a result, vacancy numbers are once again rising, and the number of “judicial emergencies”—vacancies on courts that right now lack enough judges to handle their caseloads—has nearly doubled.

The report notes that the Third Circuit seat has now been vacant over 630 days, longer than any circuit seat with a nomination pending before the Judiciary Committee.

The Alliance report also criticizes a Wall Street Journal editorial (available free here) from this past Sunday’s paper that said:

[A] fruitful area for resistance may be on Mr. Obama’s appellate-court nominees * * *. Simply refuse to confirm all of his appellate nominees until he stops abusing his power. * * *

The President and liberals would protest, but the public would barely notice. * * * In 2017 a Republican President would still have more judicial openings to fill.

Perhaps the standstill has only begun.

A closer look at the Third Circuit’s recent en banc cases

Can a middle-school student be punished for wearing an “I ♥ boobies” bracelet to school? Can a defendant be prosecuted using evidence from a GPS tracker that police hid on his car without a warrant? Can police take DNA samples from everyone they arrest? These are among the questions that have led the Third Circuit in recent years to rehear cases en banc.

Since Chief Judge McKee became chief in 2010, the Third Circuit has issued 18 en banc rulings (they’re all listed at the bottom of this post). Looking at the court as a whole, a couple things jump out at me:

    • 18 cases in about 5 years isn’t many;
    • Of the 18 cases, 6 are criminal, 4 education (3 student speech, 1 due process), 2 immigration, 2 bankruptcy (both asbestos-related), 1 habeas, 1 class action, and 2 other civil cases. I expected more civil cases;
    • 5 of the 18 rulings were unanimous;
    • In at least 5, the court’s decision to go en banc was sua sponte. In at least 6, en banc rehearing was granted before the panel ruled; and
    • Of the 6 criminal cases, the government won 5.

Interesting, right? But I wanted to see how much these 18 cases can tell us about the ideology of the court and its judges. En banc cases are an especially useful lens because (most) every active judge votes in every case, so we can compare votes much more directly than we can in panel cases. Can votes in 18 cases tell us anything meaningful about the court or the judges? I’m not sure. But I’ve crunched some numbers so you can decide for yourself what, if anything, it all means.

Here’s what I did. For each case, I classified one side–majority or dissent–as liberal, one as conservative. In my scoring, liberals side with criminal defendants, students, consumers, etc.; conservatives side with prosecutors, corporations, etc. (I omitted a unanimous bankruptcy case, Grossman’s, that I couldn’t classify). Then I tallied the votes to find each judge’s percentage of liberal votes.

But some of the cases seemed more telling ideologically than others. So also I picked out 6 cases from the 17 that presented the clearest ideological divide–cases where it was clearest to me that liberals and conservatives would favor different outcomes –and ran the numbers for those cases separately.

The results? With apologies to my smartphone readers, here is a table with how the judges voted in the 17 cases:

En banc table graphic

Liberal votes in blue, conservative in red. (Gray means the judge dissented in part, black means the judge wasn’t on the court yet, white means the judge did not sit, presumably due to recusal). The names of the 6 more ideological cases are bolded. Again, links to all these cases are at the bottom of this post.

Overall, the liberal side won 10 times and the conservative side won 7 times.

Now let’s interpret. Here is how I’d characterize the voting records in ideological terms — judges with similar voting records are listed on the same line, from liberal on the left to conservative on the right:

More liberal


Smith / Fuentes

 Greenaway / Ambro

Rendell / Vanaskie / Jordan

Chagares / Fisher / Hardiman

More conservative

So, for example, the McKee-era en banc votes of Smith and Fuentes are more conservative than McKee and more liberal than Greenaway and Ambro, with Smith’s votes slightly more liberal than Fuentes’s.

Note that I’ve omitted Sloviter, Scirica, Barry, and Shwartz from this analysis. All were active for only part of this period, so their sample sizes were smaller. For what it’s worth, Sloviter’s profile was close to McKee, while Shwartz and Scirica were both close to Ambro.)

So–again, looking purely at votes in this body of cases–I’d describe the Third Circuit’s judges as 1 liberal (McKee), 4 moderates (Smith, Fuentes, Greenaway, Ambro, plus Shwartz so far), and 6 conservatives (Rendell, Vanaskie, Jordan, Fisher, Chagares, Hardiman). Krause has not voted in a decided en banc yet.

A few more thoughts on the ideology data:

  • The conservative judges were more predictable than the liberals. Chagares and Hardiman were the only two judges who never disagreed. And in the 6 most ideologically charged cases, 3 judges voted conservative every time, 0 voted liberal every time.
  • Smith’s moderately liberal en banc voting record is probably not what George W. expected; Vanaskie’s conservative record is probably not what Obama expected.
  • Rendell’s en banc votes do not align with her reputation. By my count, she voted with the conservatives more than half the time; and in the more ideologically charged cases, she voted with the conservatives two-thirds of the time.
  • Again, I’m not sure how much stock I put in the ideology analysis here. It’s a fairly small sample size, my choices about which side is liberal or conservative are debatable, and my choices about which cases are more ideological are debatable, too. Circuit judges regularly follow controlling precedent over their own policy preferences. En banc voting patterns may not match panel voting patterns. Bottom line, I think these numbers are interesting and suggestive, but far from definitive.

Anyway, so much for ideology. What does all of this mean for lawyers practicing in this circuit? Here are the conclusions I draw about Third Circuit en banc practice:

  1. Don’t get your hopes up. The court grants rehearing en banc in about 1 decided case in 1000. Federal Appellate Practice‘s observation applies here: “filing a petition for rehearing is a little like buying a lottery ticket. It most often will prove a waste of time and money. But occasionally–and sometimes unpredictably–it will produce an enormous return.”
  2. Your best hope for getting en banc rehearing might be to overrule a prior precedent. Of the last 6 CA3 en banc decisions, 4 overruled prior precedent. In 3 of those 4, the overruled precedent had made CA3 an outlier. Two other factors leading to recent en banc overrulings: subsequent CA3 and Supreme Court cases had eroded the precedent, and the precedent caused confusion and uneven results. The opinions provide a valuable roadmap for lawyers looking for effective arguments for en banc rehearing.
  3. Don’t wait until after the panel has ruled to argue why the precedent should be overruled. Panels lack the power to overrule prior precedent, so you may be tempted to hold your arguments about overruling a case for your rehearing petition. But these cases show that’s a mistake. When the Third Circuit grants rehearing en banc to overrule a prior decision, it usually does so before the panel rules, per 3d Cir. IOP 5.5.4  (requiring internal circulation of all published and split-panel unpublished opinion drafts). Of the 6 cases I see where the court overruled a precedent, rehearing was granted before the panel had ruled in 5; only once since 2010 has the en banc court overruled a precedent after the panel had ruled.
  4. Don’t expect the en banc court to trump an outlier panel. In some other circuits, en banc rehearing is often granted when the court’s majority wants to wipe out a ruling from an ideologically unrepresentative panel (like when you draw a panel with two liberals in a majority-conservative circuit). If that sort of nakedly ideological use of en banc rehearing happens in the Third Circuit these days at all, it is rare. It may have happened in Katzin, where Greenaway and Smith went from panel majority to en banc dissenters in an ideologically charged case. But even Katzin involved an important novel issue, not a garden-variety instance of we-disagree-with-the-panel. So, as far as I can tell, the court is honoring its IOP 9.3.3 claim that it does “not ordinarily grant rehearing en banc when the panel’s statement of the law is correct and the uncontroverted issue is solely the application of the law to the circumstances of the case.”

The 18 CA3 en banc cases since McKee became chief, from most recent to oldest, are:

US v. Katzin

US v. Flores-Mejia

Rojas v. AG

Al-Sharif v. US C&I

US v. Quinn

US v. Caraballo-Rodriguez

BH v. Easton SD

Morrow v. Balaski

Garrus v. Secretary

US v. Mitchell

Singer Mgt v. Milgram

Layshock v. Hermitage SD

US v. Blue Mountain SD

Sullivan v. DB Investments

In re Global Indus. Tech.

In re Grossman’s

US v. Rigas

Puleo v. Chase Bank

Restrepo nomination: the wait for a hearing goes on [updated]


“2010-07-20 Black windup alarm clock face” by Sun Ladder – Own work. Licensed under CC BY-SA 3.0 via Wikimedia Commons –


Well, the good news is that the Senate Judiciary Committee is finally holding a judicial-nomination hearing tomorrow. But the bad news is it reportedly won’t include L. Felipe Restrepo’s nomination. More delay for the Third Circuit’s judicial emergency.

I’m told Congressional Quarterly (which is paywalled) has posted that the judiciary committee will hold a hearing tomorrow morning on two nominations, Stoll Fed. Cir. (for an opening that is not a judicial emergency) and Ketchmark WDMO (also not a judicial emergency, and nominated after Restrepo).

UPDATE: the Senate Judiciary Committee website has just been updated here confirming that the hearing tomorrow will be for Stoll and Ketchmark only, not Restrepo.

Recall that, as reported last week in Legal Intelligencer, committee chair Chuck Grassley’s spokesperson said she “couldn’t even estimate” when Restrepo will get a hearing.

Last week People for the American Way’s blog observed that the Republican-controlled committee is moving more slowly on Obama’s judicial nominees than the Democratic-controlled committee did on George W. Bush’s:

In Bush’s last two years, the Senate confirmed 68 circuit and district court nominees, slashing the number of vacancies from 56 at the start of 2007 to as low as 34 in the fall of 2008. Today’s Republican Senate has confirmed no nominees so far this year. In the meantime, the number of current vacancies has climbed from 39 at the beginning of the year to 47 today, and the number of judicial emergencies has jumped from 12 to 21.

PFAW’s blog last week also observed that the committee has held no judicial nomination hearings since January 21, and said, “Hearings for Judge Restrepo and other judicial nominees are long overdue.”

A few other resources of interest:

  • Judging the Environment has this helpful page with information on Restrepo’s nomination.
  • Alliance for Justice has posted this nominee background report on Restrepo, highlighting his key cases as a lawyer and as a judge.
  • The ABA has collected here a wealth of data on judicial vacancies overall.

My prior posts on the Restrepo nomination are here, here, here, and here.

H/T Glenn Sugamelli, who since 2001 has headed Judging the Environment‘s judicial nominations project.

Restrepo-nomination news and Fisher in district court

Saranac Spencer Hale has this article in today’s Legal Intelligencer, focusing filling long-open WDPA seats. (Free access via Google here.)

The article touches on two points of interest to Third Circuit followers. First, this update on the Restrepo nomination:

When U.S. Sen. Chuck Grassley, R-Iowa, took over as chair of the Senate Judiciary Committee at the start of this year, he indicated that he planned to maintain the same pace for moving consensus judicial nominees along to the full Senate for confirmation.

U.S. Sen. Patrick Leahy, D-Vermont, who had been chair of the committee before Grassley, had held hearings for nominees roughly every two weeks.

“That’s not true already,” Sugameli said of Grassley’s intent for keeping up with moving nominees along. So far this year the committee has held one hearing for judicial nominees.

Restrepo is not a controversial nominee, Sugameli said. He had the support of both Casey and Toomey when he was nominated to the district court in late 2012, he was confirmed by a voice vote in the Senate, and both home-state senators have, again, given him their support for his nomination to the Third Circuit.

Restrepo had to be renominated at the beginning of January and there is a new chairman with new staff examining his background, plus there was the high-profile hearing for Loretta Lynch, the nominee for attorney general, that took up a lot of time, Beth Levine, a spokeswoman for Grassley, explained of the delay.

The run-up to the Lynch hearing, which concluded last week with a 12-8 vote to move her on to a vote by the full Senate, required “all hands on deck,” Levine said.

Staff had to review 100 speeches from Lynch, Levine said, explaining the weight of the material involved.

They are still reviewing the background material for judicial nominees, like Restrepo, who are in the pipeline, she said. But coming up soon will be the hearing for the deputy attorney general.

Levine “couldn’t even estimate” a timeframe for Restrepo’s hearing, she said.

Second, the article mentions that Judge Fisher has recently took on two district court cases:

Third Circuit Judge D. Michael Fisher recently stepped in to take on two cases in the Western District, due partly to the shortage of judges on that bench. Fisher has his chambers in Pittsburgh and had also wanted to get trial experience, since he joined the appellate bench after having been in private practice and then serving as Pennsylvania’s attorney general.

“Two Third Circuit Judges” and sentencing policy

Professor Berman posted this morning at Sentencing Law & Policy about D.Iowa Judge Mark Bennett’s article “A Slow Motion Lynching? The War on Drugs, Mass Incarceration, Doing Kimbrough Justice, and a Response to Two Third Circuit Judges.” The SSRN link to the article is here.

The two CA3 judges referenced in the title are Judges Fisher and Hardiman. From the intro (cites omitted):

[Bennett’s article] responds
to law review articles by two Third Circuit judges that suggest that
federal sentencing judges should be concerned about Congress’s next
move as we sentence defendants. Judge Fisher refers to this as a
“legislative backlash.” Judge Hardiman warns that “Congress
might impose new, detailed statutory penalties that will leave
district [court] judges with even less discretion than they possessed
in the mandatory Guidelines era.” While I have heard these
refrains before, I find them both odd and at odds with fundamental
notions of separation of powers and federal sentencing judges’
overarching command to impose a sentence that is “sufficient, but
not greater than necessary, to comply with the purposes” of federal

Looks interesting.


Third Circuit opening is named a judicial emergency

Today the Administrative Office of the U.S. Courts designated a Third Circuit seat as a judicial emergency. The emergency is for the seat that opened when Judge Scirica took senior status and that Judge Restrepo has been nominated to fill.

CA3 joins CA5 and CA11 as the only circuits with AOC-designated judicial emergencies. The Scirica seat qualifies as a judicial emergency because the vacancy has existed for more than 18 months and CA3’s adjusted filings are between 500 and 700 per panel.

Paul Gordon of People for the America Way here lamented the CA3 emergency and criticized the Judiciary Committee’s failure to act more quickly on Restrepo’s nomination (I’ve added a link and omitted another):

next week’s committee schedule is up [link here], and no hearings have been announced for judicial nominees.

* * *

The good news is that district court judge L. Felipe Restrepo was nominated to fill this seat way back in November, and that he has the enthusiastic support of his home state senators, Democrat Bob Casey and Republican Pat Toomey. The bad news is that Chairman Grassley continues not to schedule a hearing for this highly qualified nominee (or any other). With this vacancy now a judicial emergency and a second vacancy on the circuit opening in July, the decision to slow-walk this nomination is even more harmful.

H/T Glenn Sugameli of Defenders of Wildlife.

Restrepo nomination update, plus some senior-status news

Here’s an update on the pending Third Circuit nomination of Judge Luis Felipe Restrepo to fill Judge Scirica’s seat, which I posted about before here and here.

The nomination is still before the Senate Judiciary Committee. In a procedural move, the original nomination was returned in mid-December when the Senate adjourned, so he was renominated in early January.

Here is Restrepo’s committee questionnaire.

He received a favorable but split ABA Rating. A substantial majority rated him well qualified, a minority rated him qualified.

This letter to the editor criticizes the delay in confirming him.

The liberal advocacy group People for the American Way singled out Judge Restrepo’s nomination as a bipartisan success-story:

Good-faith consultations can lead to highly favorable results, as we saw at the end of 2014 with a Pennsylvania vacancy on the Third Circuit. After fruitful conversations between the White House and Senators Bob Casey (D) and Pat Toomey (R), this fall’s nomination of Luis Restrepo for that seat was immediately met with the strong endorsement of both senators.

Finally, the most informative update on the Restrepo nomination is this Legal Intelligencer article last week by Saranac Hale Spencer, which reports:

President Obama nominated Restrepo to the appeals court last November, just over a year after the judge had taken the bench in the Eastern District of Pennsylvania.

That nomination came in the first batch from the White House since the election that flipped the Senate leadership in favor of the Republicans.

U.S. Sen. Chuck Grassley, R-Iowa, has since taken over as chair of the Senate Judiciary Committee and has indicated that he plans to maintain the same pace for moving consensus judicial nominees along to the full Senate for confirmation.

When U.S. Sen. Patrick Leahy, D-Vt., was chair of the committee, he held hearings roughly every two weeks, said Glenn Sugameli, who tracks judicial vacancies for the Defenders of Wildlife in Washington, D.C.

So far, the committee has had one hearing for four judicial nominees—three for the Southern District of Texas and one for the District of Utah.

Those were the nominees next in line for a hearing and, if the same practice holds, Restrepo should be in the next batch of nominees to go in front of the committee, Sugameli said.

There would be two district court nominees and another circuit court nominee in that group, so, it’s conceivable that Restrepo could be held back since circuit nominees are typically under greater scrutiny and the committee will sometimes split them up, Sugameli said. However, he said, neither Restrepo nor the nominee to the Federal Circuit are controversial.

Restrepo had the support of both of Pennsylvania’s senators—Robert Casey, a Democrat, and Pat Toomey, a Republican—when he was nominated to the district court in late 2012 and both senators have, again, given him their support for his nomination to the Third Circuit.

Unless he is confirmed by the full Senate before July, there will be two vacancies on the Third Circuit, which is relatively rare, Sugameli said.

The Seventh Circuit, in Illinois, has a seat that has been open since 2010 and another one that is slated to open when a judge takes senior status in February and the Fifth Circuit, in Texas, has two empty seats with no nominees.

“Texas and Pennsylvania are uniquely in the situation of having justice delayed being justice denied,” Sugameli said, referring to the state of the federal judiciary in those states as a whole, including district court vacancies, and the length of time the seats have been open.

In addition to discussing Restrepo’s nomination, Spencer’s article also has some great senior-status tidbits for CA3 nerds. She reports that Chief Judge McKee is the only active CA3 judge eligible to go senior, and “doesn’t plan to do that any time soon, he said.” She also reports that Judge Rendell plans to keep an 80% caseload, participating in 4 of the 5 or 6 sittings per year.

Judge Rendell announces plans to go senior

Judge Rendell has announced her intent to take senior status, according to this article by Jeremy Roebuck of the Philadelphia Inquirer last night:

In July, Rendell will take “senior status” on the 13-member court, a designation that allows her to hear cases but reduces her workload. The decision clears the way for President Obama to appoint a full-time replacement before the end of his term.

There currently are 10 senior-status CA3 judges, Judge Scirica the most recent of them.

H/t Howard Bashman at How Appealing.

Alito on Becker

Chris Mondics has this article in today’s Philadelphia Inquirer about Justice Alito’s appearance in Philadelphia today to accept an award honoring the late CA3 Chief Judge Edward Becker.

A highlight:

Becker, who authored more than 2,000 opinions during his time on the bench, produced
prodigious amounts of work, Alito recalled, sometimes attending his children’s soccer games
with a law clerk who would brief him on cases as he walked along the sidelines.


Alumni profile of CA3-nominee Restrepo

Tulane Law School last week published this positive profile of pending CA3-nominee Luis Restrepo, a Tulane-Law alum.

A highlight:

“Phil is a widely respected member of the Philadelphia legal community and a distinguished Tulane alumnus,” said Tulane University President Michael Fitts, who spent 14 years as law school dean at Penn. “He has developed an excellent reputation over the years, and he will be a great addition to the federal appellate bench. Phil is also just a warm and engaging guy.”

Media coverage of Restrepo’s nomination has been predictably sparse, so this brief profile was in interesting read.

Judge Gleeson and sentencing fairness


US District Judge John Gleeson (EDNY) (Wikimedia Commons public domain)

2014 CA3 judicial conference presenter Judge John Gleeson (EDNY) has been in the news this week for reducing the sentence of a defendant he himself had originally sentenced. Articles in the New York Times here and here. The original sentence was the product of the trial penalty and stacking.

I’m not normally one for long quotations, but I think they’re warranted here. This is how Gleeson’s memorandum in the case begins (I’ve omitted the footnotes):

There are injustices in our criminal justice system, including in this district,
and they often result from the misuse of prosecutorial power.  I have pointed some out in
recent years in the hope that doing so might help eradicate or reduce the number of such
abuses. But prosecutors also use their powers to remedy injustices.  In the spirit of fairness –
and with the hope of inspiring other United States Attorneys to show similar wisdom and
courage – I write to applaud the admirable use of prosecutorial power in this case.

The power United States Attorney Loretta Lynch has put to use in Francois
Holloway’s case inheres in our adversarial system. It is the power to seek justice even after
all appeals and collateral attacks have been exhausted and there is neither a claim of
innocence nor any defect in the conviction or sentence. Even in those circumstances, a
prosecutor can do justice by the simple act of going back into court and agreeing that justice
should be done. After careful consideration of Holloway’s crimes, the views of his victims,
and his conduct during the two decades he has been imprisoned as a result of this case, the
government has decided that it need not stand by silently while Holloway serves three more
decades of an unjust sentence. Specifically, it has agreed to an order vacating two of
Holloway’s counts of conviction and to a resentencing of him on the remaining counts. Even
people who are indisputably guilty of violent crimes deserve justice, and now Holloway will
get it.

And here is how it ends:

It is easy to be a tough prosecutor. Prosecutors are almost never criticized for
being aggressive, or for fighting hard to obtain the maximum sentence, or for saying “there’s
nothing we can do” about an excessive sentence after all avenues of judicial relief have been
exhausted. Doing justice can be much harder. It takes time and involves work, including
careful consideration of the circumstances of particular crimes, defendants, and victims – and
often the relevant events occurred in the distant past.  It requires a willingness to make hard
decisions, including some that will be criticized.

This case is a perfect example. Holloway was convicted of three armed
robberies. He deserved serious punishment. The judgment of conviction in his case was
affirmed on direct review by the Supreme Court, and his collateral attack on that judgment
failed long ago. His sentence was far more severe than necessary to reflect the seriousness of
his crimes and to adequately protect the community from him, but no one would criticize the
United States Attorney if she allowed it to stand by doing nothing.

By contrast, the decision she has made required considerable work. Assistant
United States Attorney Nitze had to retrieve and examine a very old case file. He had to track
down and interview the victims of Holloway’s crimes, which were committed 20 years ago.
His office no doubt considered the racial disparity in the use of § 924(c), and especially in the
“stacking” of § 924(c) counts. He requested and obtained an adjournment so his office could
have the time necessary to make an extremely important decision. United States Attorneys’
offices work with limited resources. The effort that went into deciding whether to agree to
vacate a couple of Holloway’s convictions could have been devoted to other cases.

Finally, the easy route – that is, the “there’s nothing we can do about your
sentence” response – would have eliminated any concern that Holloway might squander the
opportunity to make something of the rest of his life. The United States Attorney’s decision
here will be criticized if Holloway commits another crime upon his early release from prison.
She could have extinguished that risk by doing nothing. But she has the wisdom and courage
to confront it the right way – by asking me to ensure that Holloway gets the re-entry
assistance a prisoner who has spent decades in prison will need.

This is a significant case, and not just for Francois Holloway. It demonstrates
the difference between a Department of Prosecutions and a Department of Justice.  It shows
how the Department of Justice, as the government’s representative in every federal criminal
case, has the power to walk into courtrooms and ask judges to remedy injustices.

The use of this power poses no threat to the rule of finality, which serves
important purposes in our system of justice. There are no floodgates to worry about; the
authority exercised in this case will be used only as often as the Department of Justice itself
chooses to exercise it, which will no doubt be sparingly.  But the misuse of prosecutorial
power over the past 25 years has resulted in a significant number of federal inmates who are
serving grotesquely severe sentences, including many serving multiple decades and even life
without parole for narcotics offenses that involved no physical injury to others. Even
seasoned federal prosecutors will agree that many of those sentences were (and remain)
unjustly severe.

The United States Attorney has shown here that justice is possible in those
cases. A prosecutor who says nothing can be done about an unjust sentence because all
appeals and collateral challenges have been exhausted is actually choosing to do nothing
about the unjust sentence. Some will make a different choice, as Ms. Lynch did here.

Numerous lawyers have been joining pro bono movements to prepare
clemency petitions for federal prisoners, and indeed the Department of Justice has
encouraged the bar to locate and try to help deserving inmates.

Those lawyers will find many inmates even more deserving of belated justice than Holloway. Some will satisfy the criteria for Department of Justice support, while others will not. In any event, there’s no good
reason why all of them must end up in the clemency bottleneck. Some inmates will ask
United States Attorneys for the kind of justice made possible in this case, that is, justice
administered not by the President but by a judge, on the consent of the Department of Justice,
in the same courtroom in which the inmate was sentenced. Whatever the outcome of those
requests, I respectfully suggest that they should get the same careful consideration that Ms.
Lynch and her assistants gave to Francois Holloway.

Remarkable stuff. Coming as it does from a 9-year federal prosecutor who got the Attorney General’s Distinguished Service Award, it packs a punch.

Cheryl Ann Krause has been confirmed

Dechert partner and Penn Law adjunct Cheryl Ann Krause has been confirmed by the Senate. The vote was 93-0. She fills the seat that opened when Sloviter went senior. When she receives her commission, the court will have 13 active judges (8 nominated by Democratic presidents, 5 by Republicans) and one remaining open seat. Krause is the fourth CA3 Obama nominee confirmed.

Judge Krause will be the only former Scotus clerk on the court, and at 46 its youngest judge.

Update: After her confirmation, Krause was quoted by Jeff Blumenthal of Philadelphia Business Journal (link here):

“I am humbled and grateful to President Obama and the Senate, and in particular [Pennsylvania’s U.S. Senators, Robert Casey and Pat Toomey] for this opportunity to return to public service and am deeply honored to join the esteemed bench of this Court,” Krause said. “I look forward to continuing its traditions of excellence and collegiality.”

Krause nomination hits the home stretch, confirmation expected after July 4

As I predicted, Cheryl Krause’s CA3 confirmation vote appears to be nearing. Last Thursday, the Senate voted 57-39 to invoke cloture, and a confirmation vote now is expected after the July 4 holiday.

In a floor speech before the vote, Republican PA Senator Toomey expressed his enthusiastic support for Krause’s nomination. He noted she has experience “both on prosecution side and defense side, so she understands both perspectives, both of which need to be understood to have a proper balanced perspective on the court.” Hear hear.

Toomey also described his ongoing bipartisan collaboration on judicial nominations with Democratic Senator Casey, noting that they were working on filling the remaining vacancies, which include the last CA3 seat.

Video of the proceedings on C-Span here; Toomey’s remarks begin at 36:17, the vote begins at 2:16:03 and ends at 2:49:50. Coverage of the vote by Daniel Wilson at here.

Law clerks make justice happen, sometimes

We lawyers are sure that we win cases because of our great lawyering and lose them because of someone else’s bad facts or law. That’s often delusion, and proof of that came again yesterday in a soon-to-be-forgotten Establishment Clause case.

Here was how I summarized the case:

A neighbor sued under 1983, and the district court held that her Establishment Clause claim was barred because the statute of limitations began to run when the sign was posted. CA3 reversed, and for a reason not argued by the litigants: state statutes limitations do not apply to Establishment Clause claims challenging a still-existing display.

That holding won’t change the world, but what made the case interesting to me was this: the court rejected the appellant’s argument, but it reversed anyway based on an argument the appellant didn’t make. But if the lawyers didn’t come up with it, who did?

Maybe it was one of the judges, but my guess is that it was one of their clerks. Maybe it was a circuit staff attorney. Whoever it was, s/he has my respect. There are a lot of cases, a lot of meritless arguments, and a lot of lousy briefs to slog through. For clerks, it’s easier to just analyze the lawyer’s arguments, accept or reject them, and keep on moving. Going beyond the briefs — to get it right, even if the lawyers didn’t — is effort. It’s essentially invisible effort, justice for justice’s sake alone.

Just last week I was critical of what I see as a bad mistake in a published CA3 case. “Buck-naked wrong,” said I. It’s a mistake that reflects badly on the court in general, in my view, but the clerks who missed it are the ones who are going to squirm. I was a clerk myself, and, well, I know of what I speak.

Circuit court clerks aren’t perfect, any more than judges or lawyers or nerdy bloggers. When they go the extra mile to get it right, it’s a reminder of the critical role they play.

Krause confirmation vote coming soon?

Cheryl Krause’s CA3 nomination has been awaiting a full-Senate vote for over 11 weeks now. According to, of the 16 judicial nominations pending before the full Senate, Krause has been there the longest, by more than a month.

From my quick look at 2014 circuit confirmations, about 10 weeks looks like the mean wait-time between committee vote and Senate vote.

So I think we can expect a Krause confirmation vote soon.

My earlier post on Krause’s nomination is here.

Judicial conference wrap-up


Yes, this really is the Hershey Lodge’s bathroom wallpaper.

Last week was the Third Circuit judicial conference in Hershey. I was there. A few hyper- hyperlinked thoughts:

  • The circuits have come under fire for their judicial-conference spending (CA9 held theirs in Maui in 2011: oops), but I saw nothing to criticize here. Especially since CA3 foisted the cost of receptions off on outside groups including the Third Circuit Bar Association. I agree with Justice Kennedy that “The circuit conference is a prudent and proper exercise of the judicial function.” Even in this time of federal judicial budget struggles, judges and lawyers need a forum to grapple with systemic legal issues,.
  • Chief Judge McKee’s influence on the program was evident and, in my opinion, very positive.
  • Justice Alito: budding stand-up comedian. I did learn two things from his talk: (1) the Court has an internal deadline of the end of May for majority opinions and June 15 for dissents, and (2) the Justices have a no-talking-about-cases-at-lunch rule. During Alito’s talk, I kept rolling my eyes and mouthing “Not true,” but no one noticed.
  • SG Verrilli said the reason the US sided with the town in the recent legislative-prayer case was Congress’s interest in keeping its own opening prayers. I found that wacky, but this time I kept it to myself.
  • EDNY judge John Gleeson stole the show with his talk on innovative sentencing. Sixty-year-olds aren’t Scotus nominees, but Gleeson sounded Scotus-caliber to me.*
  • Cheryl Krause, whose CA3 nomination is pending before the full Senate, was there, often with a sitting judge or 2 at her side. On the rumor front, I overheard that Becker’s district court chambers have been designated for her, which may reflect the confidence that she’ll be confirmed.
  • Screened at the conference was a documentary film on criminal re-entry called Pull of Gravity. Website here, trailer here, reaction video here. The odd part: the Philly US Attorney’s office was the film’s executive producer (what sequester?), and Executive AUSA Robert Reed is its biggest champion. The good part: the film itself is eye-opening and honest. Look for it.
  • If you’re in Hershey for a meal, try Troeg’s Brewery tasting room; Nugget Nectar is the beer-nerd choice.

* Update: for more on mandatory minimums, see yesterday’s thoughtful post at Hercules & the Umpire.

One year on the court: Judge Shwartz — introduction

The Third Circuit’s newest judge, Patty Shwartz, has now been on the court for a year. One year isn’t long enough to give a full picture any judge, but it’s a start.

Good lawyers know their judges. It’s one of the advantages lawyers have who do a lot of CA3 appeals. They have a better sense of how a judge will approach their case, how she handles oral argument, whether she’s likely to be the swing vote on their panel, even whether she’s reachable with an en banc petition. CA3 regulars have that sort of knowledge about Rendell, Smith, and Sloviter, but most don’t know Shwartz as well yet.

So over a series of posts, I’ll take a closer look at Judge Shwartz and her first-year body of work — the opinions she’s written, opinions she’s joined, and her oral arguments. To be clear, I don’t suggest there’s anything unusual about Shwartz here; as other judges join the court, I plan to do one-year summaries for them, too.

Financial disclosure trivia

Federal judges annually report their outside income, investments, gifts, debts, and the like. Yesterday the Center for Public Integrity posted a searchable database collecting federal appellate judges’ disclosures. Litigants can double-check judicial recusals (financial conflicts are missed in a small number of cases: CPI report here, AP story here, apparently no CA3 judges goofed Update: actually, CPI identified a 2010 financial conflict involving Judge Roth; Bruce Greenberg’s New Jersey Appellate Law blog reports that the parties were notified and did not respond). Or just snoop.

For CA3 judges, I saw no scandal in the database but a couple interesting facts:

  • Barry is by far the wealthiest circuit judge in the country (reportedly through her father, not her kid brother)
  • Greenaway is the only CA3 judge with credit-card debt
  • Fordham Law paid Shwartz only $2,500 for teaching (c’mon, Fordham, that’s less than a tenth of what Seton Hall paid Chagares)
  • Scirica redacts a lot, and
  • Aldisert isn’t getting rich off of Winning on Appeal

Hat tip: Howard Bashman at How Appealing and Bruce Greenberg at New Jersey Appellate Law.

Judges are people too


Judge Richard Kopf

I’m a huge fan of D. Neb. Judge Kopf’s Hercules and the Umpire blog. Vibrant and unflinching. His theme: judges are people, and even smart people trying their damnedest to get it right sometimes don’t. That’s not CA3blog’s theme, but I do say appellate lawyers need to understand judges better. For that, Kopf is essential.

Recently, Kopf and Scott Greenfield at Simple Justice have been blogging back and forth about sentencing and clemency. Kopf regrets a harsh drug sentence he once imposed on a defendant named Hasan, Greenfield finds it “incomprehensible” a judge would impose a sentence he knew was unfair: “I would like to believe that they could have put a gun to my head and I still would have refused to impose a sentence I thought to be too harsh, but then, that could explain why I was never made a federal judge.”

Here’s Kopf’s response today, a comment posted on Simple Justice:

Your concluding remarks are important. I hope everyone thinks hard about them. How in the hell could any sane person impose a life sentence on Hasan or even a sentence of 324 months. I did so, as a very young judge, and I wrote a long opinion explaining why. But I do want you to know that I came close to concluding “hell no” and saying I hereby quit this stupid fucking job. But, I was, as Lorin Duckman pointed out gently to me while using different words, a “good German” judge.
I almost became an academic. I studied classic political thought. When I became a judge, I believed and understood that Congress had the right to set punishments and I had the obligation to enforce them in almost every circumstance. No game playing. Play it straight up. Do what Congress tells you because, and this is and was very important to me, the role of an unelected life tenured federal trial judge is very hard to square with democracy unless the judge’s role definition is greatly circumscribed. These thoughts were in mind in 1993—I really labored over that sentencing opinion. Ultimately, I concluded that Hasan participated in the sale of a shitload of crack and that crack ripped the lives of poor black people apart. Who was I to say that Congress was wrong and a life sentence was too harsh for someone who knowingly poisoned some of the least among us?
Those thoughts are still with me, but I much less certain about them. In fact, I [am] much less certain about every aspect of judging. And, that is why I write my blog. I have doubts about myself as a judge, and they are profound doubts. The People have every right to know about the frailties of judges like me. Your concluding remarks may well highlight one of my biggest failings.

Strong stuff.

McKee to give Philly bar talk

Chief Judge McKee will speak at the Philadelphia Bar Assoc.’s upcoming quarterly luncheon meeting. He’s giving the Judge A. Leon Higginbotham Jr. Memorial Public Interest Lecture.

The meeting is June 9 at the Hyatt at the Bellevue in Philadelphia. Tickets are $65 for PBA members, available here.

Visiting judges visiting less

Over the last six years, CA3’s use of visiting judges — any judge who’s not a Third Circuit judge — has plummeted:

In raw numbers, visiting judges in 2008 sat on CA3 appeals 443 times; by 2013, they sat only 72 times.

Here is how the Third Circuit compares to the other circuits for 2013:

So CA3 (orange bar) is now at the low end, but CA5 and CA10 are even lower–and CADC used no visiting judges in 2013, for the 5th year in a row.

So the Third Circuit is using fewer visiting judges than it did, but why? It’s not due to fewer appeals. This chart below shows how many times a judge was assigned to a Third Circuit merits panel per year:

So judge-assignments in the circuit are rising, not dropping. The difference is that active CA3 judges are filling a lot more slots now: about 5,000 in 2008, over 6,500 in 2013.

So I don’t have an explanation, but the bottom line is more Third Circuit cases are getting decided by active Third Circuit judges.

Source: AOC Federal court management statistics, 9/13 / case participations

A clue about who’s holding up the last nomination?

I’ve noted here and here that Scirica went senior last July but Obama still has not nominated anyone for his seat. A recent news story suggests that it’s not the White House causing the delay, it’s PA’s Republican US Senator, Pat Toomey.

According to a story in Tuesday’s Pittsburgh Post-Gazette, Toomey and PA’s other Senator, Dem. Bob Casey, are negotiating a deal. According to opponents of the deal, Casey would sign off on Toomey’s conservative pick for a W.D.Pa. seat, and in exchange Toomey “would defer to Mr. Casey on at least three of Pennsylvania’s other eight judicial vacancies.”

Both Senators refused comment for the story. One the deal’s opponents blogged on March 25 that the senators were expected to jointly forward Toomey’s district court pick to Obama “any day now.”

Hat tip: Howard Bashman at How Appealing.


McKee to the rescue

For those who missed it, a few months ago CA3 Chief Judge McKee played a central role in exposing another federal judge’s breath-taking misconduct.


Richard Cebull

Richard Cebull was a district judge in Montana. He got caught sending an email with a racist Obama joke. The Ninth Circuit investigated and found that Cebull’s misconduct was far more pervasive than publicly known, and spelled it out in an order concluding Cebull violated judicial ethics. At this point, Cebull chose to retire, whereupon the Ninth Circuit vacated its violation order and decided not to release it to the public. “Moot,” they said.

Enter Chief Judge McKee. He petitioned, twice, to make the violation order public. He was refused by the Ninth Circuit. But he won. In January, the Committee on Judicial Conduct and Disability of the Judicial Conference of the United States — five circuit judges, including Scirica and the judge I clerked for, David Ebel — ordered release of the damning details. They wrote, “The imperative of transparency of the complaint process compels publication of orders finding judicial misconduct.”

The Committee’s order laying out the whole story, including McKee’s role, is here.

Feeder court? No.


Photo by Mdf / GFDL via Wikimedia Commons


Feeder judges are judges whose clerks tend to get Supreme Court clerkships. Feeder courts have feeder judges. Ambitious law students pay a lot of attention to that, few litigants probably care.

But, because I’m a nerd for judicial inside baseball, I researched which Third Circuit judges are feeders. Answer: none, but Scirica is the closest.

Over the entire USSC careers of the 9 current Justices, 4 clerks a year each, they’ve hired a total of 15 former CA3 clerks (not counting Alito’s own former circuit clerks). But 6 of them clerked for judges no longer on the Third Circuit. Eight others clerked for judges who have since gone senior, which tends to dim one’s feeder cachet. So there has been exactly one Supreme Court clerk who came from a currently non-senior CA3 judge — Chagares sent one to Alito.

Focusing on recent hiring, the last 5 Scotus clerk-hiring cycles saw 5 former CA3 clerks hired:

  • 3 Scirica (2 Alito, 1 Breyer)
  • 1 Barry (Alito)
  • 1 Chagares (Alito)

That’s not in the same league as to the real feeder judges and circuits. In the 2013 hiring cycle alone, there were 15 CADC clerks, 6 CA9 clerks, and 5 CA4 clerks. Again just in 2013, uber-feeders Wilkinson, Kavanaugh, and Garland had 4 each.

Surprisingly, the district court judges in Philadelphia are almost keeping pace with the circuit judges. Brody had a clerk go on to Roberts last year and Baylson has one with Breyer now. And the legendary Pollak had 3 clerks go on to Scotus clerkships.

Krause nomination goes to Senate

Cheryl Ann Krause’s nomination to the Third Circuit now is pending before the full Senate. She was nominated in February for Sloviter’s seat. She was ABA-rated unanimously well qualified, had her Judiciary Committee hearing March 12, and was reported out of committee by voice vote last week.

Krause is a partner at Dechert and teaches appellate advocacy at Penn. She clerked for Justice Kennedy and CA9 Judge Kozinski.

If confirmed, she’d be a noteworthy addition to the court in several ways. She’d be the only former Scotus clerk and the youngest member of the court, at 46. She also would be, to my knowledge, the only active judge with criminal defense experience (half of the active judges were prosecutors).

If Krause is confirmed, the court will still have one vacancy. Scirica went senior last July but the White House has yet to nominate someone. (Mr. President: I’m available. And none of my death row clients killed police officers, so I should be confirmable.)

For more:

Judiciary Committee questionnaire

Nomination announcement

Judgepedia entry


CA3 judges & who nominated them

There are 23 Third Circuit judges, 12 active and 11 senior.

Of the 12 actives, 7 were nominated by Democratic presidents–4 Clinton, 3 Obama. The other 5 all were nominated by George W. Bush. Of the seniors, it’s 3 Dems, 8 Republicans.

The Dem majority is a bit of a fluke. One of W’s nominees (Van Antwerpen) got his commission in 2004 and went senior in 2006, and Obama got to nominate his replacement (Vanaskie). On the other hand, over 5 years into Obama’s presidency the two youngest judges on the court (Hardiman and Chagares) are still both W nominees.

There are 2 vacancies. Sloviter went senior last June, Scirica last July. Cheryl Ann Krause (Kozinski and Kennedy clerk, Dechert partner and Penn professor) was nominated in February for Sloviter’s seat; her nomination was reported out of committee a week ago and now is before the full Senate. No nominee for Scirica’s spot yet.