I’ve posted a lot over the past couple months about various Third Circuit nomination developments. With this post I want to pull it all together so you can more easily see the big picture.
The Third Circuit has 3 openings to fill out of its 14 total active-judge seats. Of the court’s current 11 active judges, 7 were nominated by Democratic presidents, 4 by Republicans. The 3 open seats formerly were held by Judges Rendell, Fuentes, and Fisher before each took senior status:
- The Rendell seat opened over 18 months before the end of President Obama’s term. Obama nominated Rebecca Haywood for the seat but PA Senator Pat Toomey blocked her by withholding his blue slip.
- The Fuentes seat opened over 6 months before the end of President Obama’s term, without an Obama nomination.
- The Fisher seat opened at the start of President Trump’s term.
The Rendell and Fisher seats are for Pennsylvania, the Fuentes seat is for New Jersey. Under long-standing practice, that means the nominees will come from those states and that each state’s two US senators each have the power to block nominations for their state by withholding their blue slip (although some conservatives are pushing to end blue slips for circuit nominees). Pennsylvania has one Democratic senator, Bob Casey; both of New Jersey’s senators are Democrats (Cory Booker and Bob Menendez).
For reasons I’ve laid out here, my view is that the Rendell and Fuentes seats should be filled by moderates in their 50’s, while the Fisher seat should be filled by any qualified nominee Trump chooses, and that at least 2 of the 3 should be women.
Here’s where the nominations process stands with each open seat:
- For the Rendell seat (PA), Trump nominated Penn Law professor Stephanos Bibas. His nomination is pending before the Senate Judiciary Committee and appears to be proceeding normally so far, contrary to some erroneous reports last month that Casey was blocking it. Bibas is 47 (not approximately 50 as has been reported). He received a unanimous well-qualified rating from the ABA.
- For the Fuentes seat (NJ), Trump has not made a nomination yet, but reportedly Chris Christie protege Paul Matey is the likely choice and is being vetted now. Matey is 46.
- For the Fisher seat (PA), Trump also has not made a nomination yet. Back in May, Federalist Society stalwart David Porter was reportedly close to being nominated, but the same report said that Casey would block a Porter nomination, and there’s been nothing public since.
So most of the real action is yet to come, but that’s where we stand today.