President Donald Trump announced on May 3 that he intended to nominate U.S. District Judge Peter Phipps to the Third Circuit’s final open seat. As far as I can tell the nomination hasn’t formally been made yet, but presumably that will happen soon. [Update: the Senate Judiciary Committee indeed received the nomination on May 13.]
Phipps currently serves as a federal judge in the Western District of Pennsylvania. He was nominated by Trump in February of last year and was confirmed by voice vote in October, seven months ago. Before that, he was a career trial attorney in the U.S. Department of Justice’s Civil Division. He graduated from Stanford Law in 1998 and clerked for Sixth Circuit Judge Guy Cole Jr. He is 46.
Pennsylvania’s Republican Senator Pat Toomey released a statement praising Phipps’s nomination. A reporter tweeted that Democratic Pa. Senator Bob Casey said he will withhold his blue slip and has “significant concerns about Judge Phipps’ judicial and constitutional philosophy,” but another report said Casey supports the nomination, and he hasn’t posted a statement on his website or tweeted one. So Casey’s position remains unclear. But his opposition would be unlikely to matter regardless, as Judge Paul Matey’s recent confirmation despite the opposition of both N.J. senators illustrated.
Materials from Phipps’s 2018 district nomination:
- Senate Judiciary questionnaire
- Follow-up written responses
- Hearing video—introductory remarks at 1:52:50, substantive answers at 2:03:55 (rule of law), 2:14:02 (Brown v. Board correctness), and 2:18:50 (implicit bias)
- a post on Vetting Room blog concluding that his record was “fairly noncontroversial” and correctly predicting a painless confirmation.
To me, the striking thing about his 2018 written and oral responses was how non-ideological his record appears. Many of Trump’s judicial nominees have strong movement-conservative credentials, but Phipps does not. His paper trail is not extensive and far from incendiary (like “An Approach to Preparing Fact Witnesses for Deposition Testimony”). He has never been a Federalist Society member. The circuit judge he clerked for was nominated by President Clinton and is viewed as a liberal. He knocked on doors in 2000 and 2001 for two local political candidates who appear to be Republicans. He did several landlord-tenant cases pro bono, presumably on the tenants’ side. He spent a decade and a half in the Civil Division. He teaches admin law as an adjunct at Duquesne.
He appeared for the government in a number of controversial cases while at DOJ. For example, he defended HUD against a major housing-discrimination class action suit in Baltimore. During the Obama administration he defended the Air Force against a challenge to the “Don’t Ask, Don’t Tell” policy brought by an 18-year-veteran flight nurse discharged for “homosexual conduct.” And in 2017 he represented the Trump administration in litigation challenging its denial of access to abortion to a 17-year-old held at a government facility for immigrant children.
One point of particular Third Circuit interest: Phipps was heavily involved in the litigation over sports gambling in New Jersey on the government’s side. According to his questionnaire, he briefed the case on both appeal rounds and also drafted the brief in opposition to certiorari and a merits-stage amicus brief in the Supreme Court. There Supreme Court’s conservatives ended up rejecting the government’s (and the Third Circuit en banc majority’s) position.
From everything I’ve seen so far, Judge Phipps appears mainstream and qualified. While I believe that nominating a man for this opening is a mistake, I also believe that, viewed on his own merits, Phipps is a sound choice.