What the 2020 presidential election means for the Third Circuit

So if you haven’t heard there is a presidential election this fall.

Four years ago, I wrote about what the 2016 election would mean for the composition of the Third Circuit, predicting that if Trump won the court’s ideological center of gravity would shift substantially to the right. That’s proving accurate, with President Trump having filled 4 of the court’s 14 seats (formerly occupied by Judges Rendell, Fisher, Fuentes, and Vanaskie) with Judges Bibas, Porter, Matey, and Phipps.

So what impact will the 2020 election have on the Third Circuit?

It’s impossible to know with any confidence. With all 14 seats now filled, openings will emerge only if individual judges choose to go senior (or are elevated to the Supreme Court, or go inactive, or retire, or, morbidly, die). As is typical, none of the court’s judges have announced when they plan to do that.

So we just don’t know. But we can make some guesses.

Right now, there are three Third Circuit judges eligible to take senior status: Chief Judge Smith and Judges McKee and Ambro. Smith became eligible in 2016, McKee in 2012 (but was Chief through 2016), and Ambro in 2015. Smith became Chief in 2016 and his terms runs through 2023.

Between now and the end of the next presidential term in January 2025, two additional Third Circuit judges will become eligible to go senior: Judge Jordan in 2022, and Judge Greenaway, Jr. in 2022. (Judge Restrepo turns 65 in 2024 but won”t meet the rule of 80 until 2026).

Pause here to note that two of President George W. Bush’s nominees (Judges Chagares and Hardiman) still will not be eligible to go senior during the next term. If every judge went senior when they became eligible, two of Bush’s nominees would remain active judges later than all but one of Obama’s five nominees!

Pause also to observe that the election could impact the court’s make-up in another big way, if Congress adds new judgeships. Proposals to do that have been floated on both the right and the left. We’ll see.

Anyway. Assuming nothing surprising between now and inauguration day, then, there will be 5 Third Circuit judges eligible to go senior during the next presidential term:

  • Smith (68)
  • McKee (73)
  • Ambro (70)
  • Jordan (62)
  • Greenaway (62)

Two of those judges hold Pennsylvania seats (Smith and McKee), two Delaware (Ambro and Jordan), and one New Jersey (Greenaway). Two were nominated by a Republican president (Smith and Jordan by GWB), three by Democratic presidents (McKee and Ambro by Clinton, Greenaway by Obama). Judges McKee and Greenaway are the court’s only two Black judges.

My guesses?

If President Trump remains president, which of the five would go senior? My guess is one, Judge Jordan. I’m tempted to say zero, but the fact that both Judge Fisher and former Judge Vanaskie chose to go senior during Trump’s first term makes me distrust my gut on that.

If Joe Biden becomes president, who will go senior? I suspect that could depend on what the next Senate looks like. To keep things simpler, let’s assume that the Democrats gain and keep a Senate majority and don’t honor GOP blue slips so that Biden’s nominees are likely to be confirmed. My guess in that scenario: all five.

How confident am I in these predictions? Not at all, actually. My phone ain’t ringing off the hook with judges confiding their future retirement plans. And I sure was wrong about whether Vanaskie would let Trump fill his seat.

Anything could happen.