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.