Bashman: “Assessing Current and Future Trump Nominees to the Third Circuit”

Howard Bashman has a fine new appellate law column today in the Legal Intelligencer analyzing Third Circuit nominations. The whole column is worth reading, but two points in particular jumped out to me:

Ironically, when it comes to criminal justice issues, Bibas could at least in some respects end up being to the left of President Barack Obama’s nominee to fill this vacancy, Rebecca Ross Haywood, chief of appeals for the U.S. Attorney’s Office in Pittsburgh. Haywood’s nomination was among those the Republican-controlled Senate deemed to have occurred too close to the 2016 presidential election to deserve full consideration or an up-or-down vote.

Bibas’ recent work litigating high-profile criminal matters has been on the defendants’ side, while Hay[w]ood’s has been on the side of the prosecution. The result could be that Bibas, in common with Scalia, may end up voting in favor of what is perceived as the liberal or libertarian result in criminal cases more often than one might expect solely based on which party nominated him.


Unlike many other federal appellate courts, which over the years have been known for their often very liberal or very conservative judicial rulings, the Third Circuit has stuck to the middle, generally favoring centrist decisions.

Casey is up for re-election in 2018—little over one year away—but assuming that the Democratic party can hold on to that seat, I would expect little change overall to the Third Circuit’s centrist disposition in the years ahead, even as many other federal appellate courts in that same period may see far more drastic changes in their composition and outlook.