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.

Last December, I wrote, “I believe the executive branch does real and lasting damage to the judicial branch when it creates wild demographic distortions like the gender imbalance now afflicting the Third Circuit.” I titled that post, “The next Third Circuit nominee must be a woman.” But on Friday, President Trump announced that the next Third Circuit nominee will be a man.

On his own merits, District Judge Peter Phipps looks to me like a sound choice, and in other posts I’ll lay out why. This post isn’t about Judge Phipps, it is about how Republican presidents have harmed the Third Circuit by appointing only men.

Once Judge Phipps is confirmed, as I expect him to be, the 14 active Third Circuit judges will be 12 men and 2 women. How did that that happen? The answer is not complicated.

President Bill Clinton successfully appointed 6 Third Circuit judges. Their genders:

• • Male
  • Male
  • Female
  • Female
  • Male
  • Male

President George W. Bush appointed 7:

• • Male
  • Male
  • Male
  • Male
  • Male
  • Male
  • Male

President Barack Obama appointed 5:

• • Male
  • Male
  • Female
  • Female
  • Male

And President Donald Trump has appointed 3 so far, with 1 pending:

• • Male
  • Male
  • Male
  • Male (pending)

If we assume that Judge Phipps will be confirmed, then, recent presidents of each party will have added the same number of judges to the Third Circuit, 11 each. Democrats added 4 women. Republicans, indefensibly, added 0.

Sometimes both sides are equally to blame. Sometimes, not.

With Paul Matey on track to be confirmed as the Third Circuit’s newest judge this afternoon, there’s been a flurry of recent coverage (most recently this story by Patrick Gregory for Bloomberg Law) about how the Third Circuit is the first of the circuits to flip from a Democratic majority to a Republican one. I want to briefly explain why I believe this flip is more symbolic than meaningful.

Let’s first get clear about what “flip” they’re referring to. The Third Circuit has 14 seats, which means that at full strength it has 14 active judges plus an undefined number of senior judges. When President Trump took office, it had 12 active judges. Of these 12, 7 were nominated by Democratic presidents (Judges McKee, Ambro, Greenaway, Vanaskie, Shwartz, Krause, and Restrepo) and 5 by Republican presidents (Chief Judge Smith and Judges Fisher, Chagares, Jordan, and Hardiman). Since then, Judge Fisher took senior status and Judge Vanaskie retired, while Judges Bibas and Porter have been confirmed and Matey is about to be. Once Matey joins the court, then, there will be 6 active judges nominated by Democratic presidents and 7 by Republicans, with 1 opening left.

Those changes, I suspect, mean the Third Circuit has become somewhat more conservative since Trump took office. That is, going from [Fisher + Vanaskie + 2 vacant seats] to [Bibas + Porter + Matey + 1 vacant seat + senior Fisher] probably moves the court to the right overall.

That said, I believe the actual impact of that shift will be modest, and that it will have little to do with the so-called flip in majority control. I believe this for a number of reasons:

• only a minuscule number of cases are decided en banc;
• since 2010, a grand total of four Third Circuit en banc cases were decided by one- or two-vote majorities, and the conservative position prevailed in by far the most high-profile of them, the Binderup Second Amendment case;
• the Third Circuit has a passionately collegial identity that makes it disinclined to decide ideologically charged cases by bare en banc majorities;
• almost all circuit appeals are decided by three-judge panels, so there’s a large element of chance in whether any particular panel reflects the court’s overall balance;
• panels are composed of active, senior, and visiting judges, and the Third Circuit has eight senior judges regularly sitting;
• 6 of the court’s 8 sitting senior judges were nominated by Republican presidents, versus only 2 nominated by Democrats;
• of the three nominated by President Trump, only Judge Porter had a notably ideological paper trail, and
• most importantly, the party of the nominating president is a substantially less-reliable predictor of circuit judges’ voting than it is of Supreme Court justices’ voting.

A flip in the Supreme Court’s majority would be a big deal. All nine justices decide every case, so a majority flip could alter the outcome of every close one. But circuit courts function entirely differently, so an active-judge-majority flip will change the outcome in a vastly smaller proportion of its cases, and it will do so demonstrably and visibly even less.

To be clear, I’m not suggesting that commentators spotlighting the Third Circuit’s flip are wrong or disingenuous. Politically, it encapsulates the rapidly changing composition of the federal judiciary under President Trump and Senate Majority Leader McConnell. In my view, reporting and commenting on the Third Circuit’s flip is appropriate. But, for lawyers practicing in the Third Circuit, it is important to realize that the flip means little for them.

The Third Circuit has been a centrist court for decades, and I don’t expect this flip to change that.

Third Circuit Judge Thomas Vanaskie will take senior status on November 30, creating a new opening on the court for President Trump to fill. Judge Vanaskie became eligible to go senior earlier this month.

Judge Vanaskie’s seat will be the fourth seat on the court potentially filled by President Trump and the Republican-controlled Senate, and the third of the four previously occupied by a judge nominated by a Democratic president.

Huge development.

Four months ago, Paul Matey was nominated for the Third Circuit’s open seat formerly held by Judge Fuentes. I can’t tell whether he’s still on the path to confirmation, but there are signs that he may not be.

First, Matey still hasn’t had his Senate Judiciary Committee hearing yet, and I haven’t seen anything indicating he’s getting one soon. Meanwhile, tomorrow’s SJC hearing will include an Eighth Circuit nominee nominated two months after Matey. And SJC already has held hearings on three four other circuit nominees submitted after Matey.

Second, he still hasn’t received a rating from the ABA. Here again, four circuit nominees and a slew of district nominees announced after him have gotten their ratings.

Third, Matey just switched jobs. He left his position as in-house counsel at a hospital to join the New Jersey law firm Lowenstein Sandler‘s white-collar group. Eric Strauss reports on ROI-NJ.com:

“Whether serving as a federal prosecutor, aiding Gov. Christie or leading the legal team at University Hospital, I’ve always known Lowenstein Sandler’s unmatched reputation for excellence,” Matey said in a statement. “Working alongside so many of my former colleagues, and a valued friend and exceptional attorney like Chris, made joining the firm an easy choice.”

Matey was nominated for a federal judgeship by President Donald Trump earlier this year, but the confirmation process has not yet begun.

“We are very fortunate to have Paul as our partner,” Porrino added in an emailed statement to ROI-NJ, “and look forward supporting him during his judicial confirmation process.”

Honestly, I’m not sure what to make of all this. I think it’s possible none of this means anything and Matey still will be confirmed without incident.

But I’m starting to wonder.

Update: there’s a bit more information in this August 20 story by Meghan Tribe for NJ Law Journal, noting that Matey was targeted for recruitment to the firm by a fellow alum of Governor Christie’s legal team.

This morning the American Bar Association rated Third Circuit nominee David Porter as “qualified.” The rating committee’s vote was unanimous. Link here.

The ABA Standing Committee on the Federal Judiciary rates judicial nominees as well qualified, qualified, or not qualified. Stephanos Bibas was rated well-qualified, as have been most of President Trump’s circuit nominees. (And as was Rebecca Haywood.) Other circuit nominees rated qualified were John Bush for the Sixth Circuit, Ryan Bounds for the Ninth Circuit, and Britt Grant for the Eleventh Circuit; Steven Grasz for the Eighth Circuit was rated not qualified with one abstention.

Porter’s Senate Judiciary Committee hearing is tomorrow morning.

Also today, Tracie Mauriello has an excellent article on Porter’s nomination in the Pittsburgh Post-Gazette, link here. It begins, “David Porter will almost certainly join the bench of the 3rd U.S. Circuit Court of Appeals, but the …  Trump judicial nominee first will have to run a gantlet of angry Democrats who believe he never should have gotten this far in the confirmation process.”

UPDATE: the last time a Third Circuit nominee was confirmed with an ABA rating of Qualified or below was Judge Fuentes in 1999. While unconfirmed G.W. Bush nominee Shalom Stone was rated Qualified, all of G.W. Bush’s and Obama’s confirmed Third Circuit nominees were at least majority Well Qualified.

But outside the Third Circuit there have been plenty of Qualified circuit judges confirmed in recent administrations, notably Jane Kelly for the Eighth Circuit, William Pryor for the Eleventh Circuit, and Janice Rogers Brown for the D.C. Circuit.

UPDATE 2: Andy Simpson, a fine Virgin Islands appeals lawyer and President-elect of the Third Circuit Bar Association, offers this thoughtful response to my post:

I suggest that you are putting too much emphasis on ABA ratings.

Current SCOTUS CJ John Roberts was given a Q for his nomination to the DC Circuit
Current SCOTUS J Sonia Sotomayor was given a majority Q, minority WQ for her nomination to the SDNY
Judge McKee was given a majority Q, minority NQ for his nomination to the Third Circuit

Three circuit stalwarts, Richard A. Posner, Frank H. Easterbrook and J. Harvie Wilkinson III were in the same boat as Judge McKee: All received majority Q, minority NQ ratings for their circuit nominations.

I basically agree with Andy. I meant the WQ-vs-Q stuff above mainly for nerdy curiosity, not to suggest it’s a big deal. As I posted on Twitter, “Bottom line, I think the Qualified rating is good-enough news for supporters of Porter’s nomination and another reason to believe he is on the path to being confirmed.”

On Friday Matt Zapotosky of the Washington Post reported that six former clerks and staffers have accused Ninth Circuit Judge Alex Kozinski of sexual misconduct. One of the accusers, former Kozinski clerk Heidi Bond, has posted a fuller account here, and it’s devastating.

Kozinski responded to the accusations both in the original Washington Post story and in this follow-up in the Los Angeles Times by Maura Dolan. Kozinski’s public response to date has been disturbing. First:

After Bond left the legal profession, [Kozinski] said, she sent him an email asking if he wanted an audio version of one of her novels. Kozinski described it as a romance novel with one chapter containing “very torrid sex.”

And:

“I have been a judge for 35 years and during that time have had over 500 employees in my chambers. . . . [I]t is regrettable that a handful have been offended by something I may have said or done.”

And:

“If this is all they are able to dredge up after 35 years, I am not too worried.”

This looks to me like a calculated strategy of attacking the accusers, and I hope judges condemn it.

Anyhow, this is a Third Circuit blog, and obviously Kozinski is not a Third Circuit judge, but this story has a surprising number of Third Circuit connections.

First, Third Circuit Judge Krause clerked for Judge Kozinski in 1993-94. Per How Appealing, she is one of four circuit judges who clerked for him. [UPDATE: to be clear, Judge Krause has not made any public comment regarding the accusations against Judge Kozinski.]

Second, it was the Third Circuit Judicial Council that adjudicated the misconduct allegation against Kozinski in 2009 for storing pornographic images on a publicly available website. (A link to the opinion is here.) The matter was transferred by Chief Justice Roberts to the Third Circuit–Professor Arthur Hellman believed that was done because of Roberts’s absolute confidence in then-Chief Judge Scirica. The investigation committee included Judges Scirica, Rendell, and Stapleton. The Council that ruled included Judges Scirica, Sloviter, McKee, Rendell, Barry, and Ambro. (I tweeted some thoughts about that proceeding here and here.)

Third, Judge Scirica also was involved in the current matter, as Heidi Bond recounts:

On the advice of two friends, I spoke to several people in the federal judiciary—first, Jeffrey Minear, Counselor to Chief Justice Roberts, then, at his referral, to Judge Scirica of the Third Circuit, in his capacity as the chair of the Committee on Judicial Conduct and Disability.

I wanted to know if I could tell some of those details to my husband, a therapist, or some close friends.

I want to be clear that Judge Scirica was warm, understanding, and kind. He also insisted that I not tell him any facts of the situation. I believe the reason he gave was that since the question was whether judicial confidentiality applied, there was no way to give specifics without potentially breaching confidentiality.

Initially, he told me that if what had happened was a matter of personal misconduct on the part of the judge, that I was not bound by the code of chambers confidentiality, and that whatever I needed to do for my own closure and healing was fine, so long as it wasn’t about a judicial matter.

That’s where I paused. “What,” I said, “if it’s not about a matter that my judge decided, but if there’s a nexus of facts that are relevant to another judicial matter? What if there’s a nexus of facts between what I want to talk about and the matter that arose from US v. Isaacs?”

Here I must digress. The porn the judge showed me was stored on his personal server, a computer in his house that he left entirely unsecured. A year after I left, a disgruntled litigant discovered the existence of this server, and, in light of the images on it, Kozinski asked that an official ethics investigation be made into his conduct.

A pause. “I know something about that matter,” Judge Scirica finally said. I knew he did. He’d written the opinion that ultimately exonerated Kozinski in that investigation. I had done my best to pay as little attention to the matter as possible.

“What then?” I asked.

It took him a while to think this through. Because of that investigation, the only way that he could tell me if the matter was covered by judicial confidentiality was if I told him the facts of the matter, but there was a possibility that the matter was covered by confidentiality, in which case I could not tell him.

I wrote down his next sentence, and so this is a direct quotation: “I cannot think of any person, persons, or institution that can give you an answer on this,” he said.

It’s an important story and I suspect it’s just getting started.

Senate Judiciary Committee Chair Chuck Grassley announced last week that he’ll no longer honor blue slips for circuit nominees. This is a very big deal, especially here in the Third Circuit.

By withholding a blue slip, an individual senator from a judicial nominee’s home state was able to block the nomination. (Per longstanding practice, circuit seats are designated to specific states; more populous states get more seats.) That’s how PA’s Republican Senator Pat Toomey blocked Obama’s nomination of Rebecca Haywood for the Third Circuit seat that Trump just filled with Stephanos Bibas. It’s also how Toomey held up the nomination of Judge Restrepo for over a year.

But blue slips gave senators not just the power to delay or block, but also to influence. Indeed, that’s where their real power was. Only a relative few circuit nominations ended up being blocked outright, but many more were filled with compromise centrists instead of party-base dream picks.

I believe the GOP’s strategy behind eliminating blue slips for circuit nominees isn’t that they’re afraid senators were going to block a few nominees like Stras or Bounds or Duncan. It’s that they don’t want to have to compromise with Democrats and moderate Republicans about any of them. They want every Trump circuit judge to be a conservative home run: young, ideologically committed, and, in Carrie Severino’s words, “well-known in the conservative legal movement.”

As Breitbart explained, “Grassley’s decision clears the path for the president to rack up an impressive number of successful judicial appointments,” and “All of President Trump’s judicial nominees should now make it through” the Judiciary Committee. They don’t care about preserving norms, they care about maximizing advantage. Eliminating blue slips frees them to try.

Let’s look at some numbers to get a clearer sense of the impact.

Today there are 18 circuit court vacancies. Eighteen circuit seats is a lot, more than Obama filled in the final three years of his presidency. Most of those seats — 11 of 18 — are openings that, until last week, Democrats were able to use their blue-slip power to block, slow down, or influence.* No more. When push comes to shove, I expect Democrats to have just as much say in who gets picked for the two pending Second Circuit vacancies from New York, for example, as they had for the two Fifth Circuit openings from Texas: zero.

Dear reader, that’s a big deal.

And it’s a bigger deal in the Third Circuit than anywhere else. Here are the 18 current vacancies (seven of which already have a nominee), listed by circuit:

• CA2 — 2
• CA3 — 2
• CA5 — 4
• CA7 — 3
• CA8 — 2
• CA9 — 4
• DC  — 1

Now here’s the same list, but this time I’ve added in parentheses how many of those vacancies Democrats had blue-slip power over before last week:

• CA2 — 2 (2)
• CA3 — 2 (2)
• CA5 — 4 (0)
• CA7 — 3 (3)
• CA8 — 2 (1)
• CA9 — 4 (3)
• DC  — 1 (0)

Finally, for each of those circuits, here is the court’s current ideological make-up by the (imperfect!) shorthand measure of how many judges were appointed by presidents of each party:

• CA2 — 7 D, 4 R    (+3 D)
• CA3 — 7 D, 5 R    (+2 D)
• CA5 — 5 D, 8 R    (+3 R)
• CA7 — 2 D, 6 R    (+4 R)
• CA8 — 1 D, 8 R    (+7 R)
• CA9 — 18 D, 7 R  (+ 11 D)
• DC  — 7 D, 3 R     (+4 D)

Compare those last two lists, and you see that the Third Circuit is where eliminating blue slips matters most:

• The Third Circuit is the only circuit in the country where there already are enough vacancies for Trump to change the court’s overall balance of power; and
• Both of the Third Circuit’s vacancies — one PA, one NJ — were seats that, until last week, Democrats had blue-slip power over.

When PA’s Democratic Senator Bob Casey returned his blue slip for Bibas, he reportedly warned that he would block conservative activist David Porter if Trump nominated him. With blue slips gone, will Porter’s nomination happen now?

For the New Jersey opening, the Trump administration was reportedly negotiating with the state’s two Democratic senators, Cory Booker and Mistrial Bob Menendez, to nominate Chris Christie ally Paul Matey. Will Matey’s nomination happen now? Or was he a compromise, one the GOP no longer cares to make?

Exchanging Judges Rendell, Fuentes, and Fisher for Bibas plus two committed conservatives is intended to have an impact, and I have no doubt that it would.

Eliminating blue slips will matter in the Second Circuit too, but not quite as much yet. It will also matter in the Seventh and Ninth Circuits, but not nearly enough to change the overall balance of either court.

These are chaotic times, so it’s hard to be sure how all this will play out. Grassley could change his mind again. The Trump presidency could implode. Republicans could lose the Senate before they manage to fill these seats. Senate Democrats could exercise leverage over judicial nominations in other ways. Trump could stop doing Leonard Leo’s bidding. Moderate Republican senators could stop doing Trump’s bidding. Republicans could moot the whole shebang by enacting Federalist Society co-founder Steven Calibresi‘s poisonous new court-packing scheme. Or, nuclear holocaust. No one knows.

But this much is clear: last week, the first phase of Trump’s transformation of the circuit courts ended. It went better than conservatives could have dared to hope, but this was only the first 11 months. Conservatives hope it’s just the beginning.

* I calculated myself all the blue-slip and appointing-president stats in this post. The circuit vacancies are here, the judges’ chambers are on the circuit websites or Wikipedia, the judge’s appointing presidents are here or on Wikipedia, and the party of each state’s senators is here. (Fellow nerds: Yes, I realize it’s theoretically possible for a judge to have her/his chambers in a state different from that seat’s home state, yet still be within the circuit so that the switch is not obvious. I know that’s not the case for several of the 20 seats discussed here, and I’ve assumed it’s not for the rest, either.)

Stephanos Bibas’s committee hearing just wrapped up. My overall view is that he acquitted himself well and solidified his prospects for confirmation.

[Update: here’s a link to video of the hearing which I found on How Appealing.]

The Democrats on the committee pressed him mainly on two points: his unsuccessful prosecution as a junior AUSA of a $7 theft case, and his advocacy in an unpublished article for corporal punishment including electric shocks as an alternative to prison.

On the $7 case, I thought he hit it out of the park, concluding, “I made a mistake, I apologized, I learned from it, and I tried to improve the justice system going forward.”

On the electric shocks, Bibas was less deft. His initial response sounded like a flat denial that he’d ever advocated that, pointing to a 2012 book of his. [Referring to his responses starting at 54:27 through 55:15] But then Senator Durbin — not Bibas — raised Bibas’s 2009 unpublished article (which I have never seen) where he’d urged as the default punishment for “the broad middle spectrum” of crimes be “non-disfiguring corporal punishment such as electric shock.” [Starting at 1:00:51] Bibas responded that he now categorically rejects corporal punishment and disavowed his 2009 paper as “a crazy idea.” And, “I realized after discussing it, yes it’s crazy.” While I’m surprised that such a magnificent advocate would leave himself open to Durbin’s haymaker like that, in the end I think Bibas said what he needed to say.

That bobble aside, I thought Bibas’s overall performance was strong and I expect that his confirmation is now just a matter of time.

Other miscellaneous observations from the Bibas hearing:

• He wore a necktie, not the bow tie he often wears.
• In introducing his family at the hearing (including some very winning remarks about his kids), he noted that one of his relatives has the same name he does, and that the relative’s writings have been mistaken for his. I hope I didn’t get them confused in my posts here.
• At one point as Bibas was gesturing he briefly held a black yarn item in his hand. Maybe I’m showing my ignorance here, but I wondered what it was.
• Senator Cruz mentioned that he had known Bibas for 25 years ago or more because they both competed at college debate events. He joked that back then neither of them would have been thought of as “the cool kids.”
• In the course of explaining his concern about over-incarceration and its impact on poor and minority communities, Bibas said, “a person is not reducible to his worst act.”
• Senator Klobuchar asked him if he supports cameras in the courtroom. His response was that he’d be the new guy so he wanted to listen first. He said he thought the Third Circuit was one of the first, if not the first [no] to record and transmit video, but only if all the lawyers [no] and all the judges consent. He noted that “only a few” videos had been released — sounds like Bibas is a Bashman reader too — and said he’d like to know why so few, and whether there had been any blowback from the videos released so far.
• Bibas noted that the Third Circuit has a reputation for collegiality and for relatively few dissents and concurrences. He said he thought this was healthy, and said he hoped to do his part to maintain that atmosphere of consensus.

UPDATE

News coverage of the hearing by Michael Macagnone for Law360 (paywalled) is here.

And Howard Bashman linked to this post on How Appealing, included a link to video of the hearing, and wrote:

I listened to the testimony of Third Circuit nominee Stephanos Bibas at this morning’s Senate Judiciary Committee hearing (you can view the archived video via this link), and I found him to come across as extraordinarily intelligent, enthusiastic, and thoughtful. He was even considerate enough to speak quickly when answering so that Senators could ask more questions (something that other nominees seem to deliberately avoid).

I for one am really looking forward to seeing him in action at the Third Circuit, occupying the seat that once belonged to the Third Circuit judge for whom I clerked immediately after law school.

 

Yesterday I posted some thoughts on Third Circuit nominee Stephanos Bibas as his Senate hearing approaches, the latest of many posts on him here. [UPDATE: the hearing has happened, and I posted my initial thoughts on it here.] If there was a theme to my four comments, I suppose it was ‘liberals, don’t panic.’

Today, one more (last?) overarching thought before the hearing: while we know a staggering amount about Bibas’s views on criminal-justice issues, we know surprisingly little about his views beyond his professional focus.

What we do know about his views on other issues is intriguing, ambiguous, and very far from definitive:

• He has described himself as a conservative;
• He grew up in New York City. His father was a Greek immigrant who owned restaurants. Bibas and his wife Juliana have four children. He is a devout Christian who is active in the Orthodox Church. He was “raised Orthodox, but didn’t get serious about it until he was in his late 20s.” His wife has a masters in European History, wrote a novel, and is a prolific (and amazing) blogger.
• His only political contributions have been to Republicans — Bob Dole in 1996, Mitt Romney in 2012, and Pat Toomey;
• His closest professional associates appear moderate-to-liberal, especially on gun control
• His Supreme Court clinic cases have trended liberal;
• His respectful 2016 remembrance of Justice Scalia for the Heritage Foundation emphasized Scalia’s liberal rulings and noted, “I have given him two cheers, not three, criticizing his formalism as sometimes too rigid and impractical and his originalism as stretching beyond its textual and historical foundations.”
• A junior professor who worked closely with him wrote a letter in support of his nomination which noted that, no one had been more empathic to her as a gay woman than Bibas and every career conversation they had began and ended with her wife and daughter;
• The former dean of students at Penn Law wrote in support, “as gay men, my husband and I have always found Stephanos to be warmly supportive of our relationship and marriage. On several occasions Stephanos and I have spoken about evolving LGBT history and issues. These are issues with which he has shown no personal or academic discomfort.”
• His nomination has been publicly supported by many committed liberals, including David Rudovsky, Barry Scheck, and Akhil Amar;
• He was chosen through a process reportedly driven by two conservative groups, Federalist Society and Heritage Foundation; and
• Many committed conservatives have spoken rapturously of his nomination, including Carrie Severino (“fantastic,” “another major victory“), Jonathan Adler (“incredibly strong,”), and Robert George (” a terrific choice“), and a reportedly Koch Brothers-funded group ran ads supporting his nomination.

Such are the tea leaves I’ve found — make of them what you will.

Third Circuit nominee Stephanos Bibas figures prominently in a harsh new look at plea bargaining in this month’s issue of The Atlantic. The article is “Innocence is Irrelevant,” by Emily Yoffe, link here.

Bibas is quoted describing the criminal-justice system as a “capacious, onerous machinery that sweeps everyone in.” And this:

No amount of tinkering, however, will matter much unless Americans stop trying to use the criminal-justice system as a tool for managing social ills. “Why are these cases being pumped into the system in the first place?,” Bibas said to me.

Am I the only one who can’t wait for his Senate Judiciary hearing?

No doubt you’ve heard that legendary Seventh Circuit Judge Richard Posner abruptly retired earlier this month. Likely you’ve also heard that he just released a sensational new book recounting the conflict over his court’s handling of pro se appeals that he says led to his retirement. Posner is famously irreverent, and I suspect many look forward to watching the fists fly.

I got a copy of Posner’s book over the weekend, and I’ve read most of it and skimmed the rest. It’s called Reforming the Federal Judiciary, and subtitled My Former Court Needs to Overhaul Its Staff Attorney Program and Begin Televising Its Oral Arguments. He self-published it through Amazon, you can buy it here for the low-low price of $11.99.

Let’s start with the positive:

• There’s a kernel of bracing Posnerian brilliance here. Blazing a spotlight on the separate-but-equal appellate review that pro litigants receive is vitally important. Hardly anyone understands how pro se appeals are handled by the federal courts — that is, how differently than appeals by litigants wealthy enough to hire lawyers. And hardly anyone cares. Posner is on to something big here.
• There’s a decent amount of raw information here about what staff attorneys’ offices do in different circuits. For the Third Circuit, there’s 20 pages of survey answers by current staff attorneys detailing who they are and what they do. There’s some useful information there for appellate practitioners. There also is detailed information on the Fifth and Seventh Circuit SAOs, and a spreadsheet with data on most of the others.
• Third Circuit fans will note with satisfaction that our staff attorneys’ office is held up by Posner as one of the offices that’s doing it right, or at least better.

So much for the happy part. Posner has made a terrible mistake in publishing this book. It is batshit crazy.

At its heart, this book is a baffling, disjointed blow-by-blow of Posner’s many recent battles with Seventh Circuit Chief Judge Diane Wood, the quite-unintentional hero of the tale.

The primary battle arose from Posner’s demand that he be allowed to re-write all his circuit’s staff attorneys’ memos and draft opinions before they went to his fellow judges. This is a ludicrous idea. Posner thought it “uncontroversial” and he was “surprised” when it was met with first silence, then uniform rejection. When Wood told him so, Posner “angrily” threatened to reveal staff counsel work product he deemed not good enough. When he was told that doing so would violate the judicial code of conduct, he resigned, and now he has self-published everything — memos and drafts by staff counsel peppered with his acid edits, emails between the judges, the whole trainwreck.

And why did Posner anoint himself as filter between the staff attorneys and his colleagues? Largely, he says, because “uniquely among this court’s judges, [he had] a deeply felt commitment to the welfare of the pro se litigants.” But, by his own account, he only “became interested in the staff attorney program in the late winter/early spring of this year (2017).” And in his preceding three and a half decades on the court, “I’m pretty sure I’d never even discussed it with another judge.” Deeply? Uniquely?

It gets worse. Posner chooses to reveal the initial panel vote in a still-not-yet-decided appeal that he identifies by name. The other two panel members plan to affirm, he tells us. (Posner disagrees, so we get two paragraphs summarizing and quoting from the dissent he would have filed.) What compelling reason led him to include this stunning disclosure in a book ostensibly about pro se’s and televising arguments, when this case has nothing to do with either? Because “I’ve decided to note two recent clashes with colleagues.” This is not Posner-being-Posner, this is madness.

The other “clash” he chooses to recount is when he emailed all the judges on the court to tell them he thought it odd that some judges referred to Wood as “Chief Diane.” He admits this one “doesn’t reflect credit on me” and, “In retrospect, I cannot understand what moved me to email the judges ….” Me neither.

While bad judgment is the real issue and there are dozens more examples available, there also are embarrassing errors. An appendix with another judge’s writing tips (?) repeats itself at length. The index lists Third Circuit Chief Judge D. Brooks Smith, but actually the judge referred to all but once is EDVa Chief District Judge Rebecca Smith. One passage starts out as narrative text but ends up as a quoted email. It all reinforces the sense that this book was a lonely endeavor.

Posner’s enemies will be chortling, but, for his many admirers, it’s just sad.

UPDATE: here is a powerful response to Posner’s book, written by a former Seventh Circuit staff attorney (and current DOJ antitrust lawyer) and posted on October 5 on Volokh Conspiracy.

Now is the time of year when new federal appellate clerkships start, which got me thinking back to my own clerkship for a wonderful Tenth Circuit judge. (The other judge I interviewed with was Chief Judge Becker here in the Third Circuit. So close!) My clerkship was one of the best years of my life, and I’ve heard many other former clerks, before and since, say the same thing.

If you’re just starting a Third Circuit clerkship, you’ve probably heard lots of folks like me wax enthusiastic about clerking. You’re excited, and you should be. Walking into the courthouse that first day is a singular feeling.

But when I started my clerkship I had a pretty hazy idea of what clerkships actually were like. All the misty-eyed encouragement is nice, but it doesn’t give you the whole picture. Understanding a few realities going in can help you get the most out of your clerkship.

So here are six things you should know:

1. The applause is over. Law school is a firehose of feedback. Class rank, exams, jobs, law review, and on and on — as a law student you were measured against your peers constantly and minutely. You came out on the winning end often enough to land a circuit clerkship, and those triumphant moments were intoxicating.

But, when it comes to feedback, clerking is nothing like law school. You’re working just as hard, but suddenly there’s no medal ceremony at the end of every race. No one’s handing out prizes for the best opinion drafts. No one’s telling you whether your bench memo was an A+ or a B-, or why. Judges don’t care whether you rank 8th or 58th on their list of all-time best clerks, which doesn’t exist.

In law school, you knew how you were doing down to the hundredth of a gradepoint. In your clerkship, you may wonder for weeks or months, without the barest hint. The competitive fire, the moments of triumph and affirmation that got you through law school — they won’t get you through your clerkship.

2. Judges are busy. When I was a law student daydreaming about clerking, I pictured myself in the judge’s office, earnestly hashing out big legal questions with my co-clerks and the judge. Afterwards, in my daydream, the judge would mosey over to my office, lean back in a chair with his feet up on my desk, and we’d bat around reflections on the big opinion we just issued.

That ain’t how it went.

Every day, on average, my judge read 1,000 pages of briefs and decided two cases. He estimated that he wrote the equivalent of two law review articles a week. So there wasn’t a whole lot of time left to sit around and bullshit with me.

3. Extroverts beware. One of my co-clerks was a true people-person, warm and social. For folks like her, a circuit clerkship can be a lonely bore. Coming from law school, appellate clerking can feel like a year of monkish solitude. You spend most days shackled to your computer, researching and cite-checking and drafting. You get a bit of human contact with your nerdy co-clerks, but a lot less contact with other chambers, and, unlike district clerkships, no contact at all with the lawyers.

That’s fine and dandy if you’re like me — another of my co-clerks dubbed me a Lover of the Law, and I do believe his tone was mocking. But if you’re an extrovert, know that you’re probably not going to get all the social sustenance you need at work, so try to get it somewhere.

4. Accuracy before artistry. Law school rewards flash: it’s less important to be correct than to seem brilliant. Most exam questions don’t even have a ‘right’ answer. They’re a backdrop against which you dance and preen, outdoing your classmates with your elegant insights. No one cares too much whether you concluded in the end that Daisy’s negligence proximately caused Peter’s injury or not.

But, as a clerk, your focus can’t be your stardom. If it is, you can stretch too far to find and reach issues that seem important, even when (especially when) the parties haven’t briefed them adequately. You can spend too much time crafting grand Gorsuchian passages and too little time slogging through the record.

If your focus is on standing out, you’re prone to make more mistakes. Maybe that trade-off was worth it when you were a law student, but not when you’re a law clerk.

5. Be your best self. A circuit clerkship is a nifty thing to have on your CV, but for many the credential ends up mattering less than the relationships they built during the clerkship. Of course you want to charm and impress your judge, but don’t lose sight of your co-clerks and the clerks in other chambers. In the decades ahead they’re going to be doing amazing things — their friendship will enrich your life and maybe help your career. Do your best not to be an ass.

6. Let the judge be the judge. One day down the road, after the initial panic recedes, you just won’t believe how much power you’ve got as a clerk. You untangled how the case should come out, you persuaded your judge, and now it’s going into F.3d. It’s heady stuff.

That’s all fine. You really do get to have an impact, and that’s part of the fun. But keep it in perspective. You’re not the one who made it past the Judiciary Committee, and you’re not the one whose name goes on the opinions. And thank god for that. Because, for all your jaw-dropping Bluebook mastery, you’re still a knucklehead with a career’s worth of lessons yet to learn. Your job isn’t to decide cases: your job is to help your judge decide. Remember that, and you’ll do okay.

For most, the cliche turns out to be true: clerking for a federal appellate judge is an amazing opportunity. But chances are it will be a different version of amazing than the one you envisioned beforehand. The sooner you accept that, the easier it will be to appreciate everything your clerkship does offer.

As I was working on this post, I also solicited input on the topic from others. Here are those thoughts, verbatim with light editing for consistency:

• Some lawyers just aren’t very good. While it is true that you will marvel, on occasion, at the quality of lawyers’ briefs, you also find yourself marveling that someone had the gall to submit (insert piece of trash here) to the marble palace in which you now reside. The mean average of briefs hovers around “adequate”; which, if you think about it, is probably ideal if it gets the job done. But there’s some terrible lawyering out there, more terrible still when your independent research–and get used to doing independent research–suggests that the party could have won IF ONLY…. Such is life in an adversarial system.

• Despite the above: most clerks come into a clerkship without extensive background in actual practice. You may not know why a lawyer did something you deem puzzling, but there may be a good reason. A lawyer’s mistake, or failure to notice a case, may seem inexcusable, but you also don’t know this attorney’s caseload. People make mistakes, and it is not the job of the clerk to punch downwards.

• Some appellate judges are “lovers of the law,” others emphasize practicality, and most are somewhere in the middle. Don’t interpret your boss’s lack of enthusiasm for the intricacies of the FLSA as a suggestion that your work is not important or appreciated. Getting things right matters.

• Sometimes an opinion will have passed across countless desks, have undergone scrutiny by multiple pairs of eyes … and it will still have a serious substantive mistake. The law is complex; no one can be a master of all domains. Learn when to speak up, and how.

• With occasional exceptions, federal appellate judges do not decide cases on their lonesome. In each case, whether your judge is writing or not, you will have two other judges (and their clerks) to contend with. Some Circuits are known for their collegiality, and others for their frost. But unlike in District Court, your boss will not be her own fiefdom, and that will, for better or worse, affect how your chambers decides and writes cases — both for the present and also the future, because federal appellate judges are the ultimate repeat players.

• You will make mistakes. You will receive pushback. Try to act constructively about the former — is there anything you can do? anything you can fix? — and graciously about the latter. Perhaps the other judge, or co-clerk, isn’t beyond stupid. Perhaps they have a point that you should consider.

• Don’t be an asshole or asshole-adjacent. Your co-clerks will be with you the entire term — perhaps shorter, perhaps longer, but in any event long enough. Office politics are magnified in a cloistered environment, and fast. Consider it a learning experience. Instead of picking a fight over Alex’s inability to ever clean the sink, breathe deep, focus, and think of whether it’s worth three weeks of avoiding eye contact and awkward lunches with the boss. Of course it isn’t.
  

Hey former circuit clerks: what did we miss? What do you wish someone had told you when you started? Email me, and I’ll post any good responses (anonymously, if you prefer) in a follow-up.

UPDATE: Orin Kerr responded on Twitter yesterday with his own take on advice for new clerks. Highlights: “Work hard to get along with the judge’s secretary,” and “Most briefs stink.”

With Justice Neil Gorsuch confirmed, attention now turns to filling vacancies on the lower federal courts, including the Third Circuit. David Lat posted on the topic on Above the Law on Friday, and his post contained at least two points of particular interest to Third Circuiters:

• “[T]he nominees are very young — some names I’ve heard mentioned are still in their 30s,” and
• “I’ve heard through the grapevine that interviews for some (but not all) spots on the Third, Seventh, and Ninth Circuits … are underway.”

The Third Circuit urgently needs judges. Of the 14 seats on the court, three are open:

• Judge Rendell’s seat (Pennsylvania), open since July 2015. President Obama nominated Rebecca Ross Haywood for this seat but Senator Pat Toomey blocked her.
• Judge Fuentes’s seat (New Jersey), open since July 2016.
• Judge Fisher’s seat (Pennsylvania), open since February 2017.

The $64,000 question: Who should fill these three seats?

Home-state senators have the power to block judicial nominations by withholding their blue slips. That means Pennsylvania’s Democratic Senator Robert Casey can block two of the seats, and either of New Jersey’s Democratic Senators (Cory Booker and Bob Menendez) can block the third.

Casey and Menendez are both up for re-election in 2018. Menendez is under indictment for federal corruption charges. Booker has been mentioned as a potential 2020 presidential candidate. So all three likely will be under the microscope.

What will Trump do? What will Casey, Booker, and Menendez do? What should they do?

I’ve given this a lot of thought since my last posts about it (here and here) last November, and I believe the solution is straightforward.

First, all three seats need to be filled. ‘They blocked us before so we’ll block them now’ is the wrong answer.

Second, at least two of the three seats should be filled by women. The Third Circuit has only two active judges who are women, the worst gender imbalance [until recently, see below] of any circuit in the country. Perpetuating that imbalance is unthinkable.

Third, both the Rendell seat and the Fuentes seat should be filled by consensus picks. The precedents here are Judges Greenaway and Vanaskie, both nominated by President Obama with a Democratic-controlled Senate to fill seats that opened during President Bush’s presidency.  Both were moderate centrists — Greenaway was a federal criminal prosecutor and corporate counsel who clerked for a Republican-nominated judge, Vanaskie was MDPA chief judge with a decade and a half on the federal bench and was a Scranton commercial litigator before that.  And both were over 50 when commissioned — Greenaway 52, Vanaskie 56.

Yes, Republicans may have stolen the Rendell and Fuentes seats from Democrats by obstruction, but the way forward for Democrats now is compromise, not more obstruction. So, agree on two well-qualified moderate Republicans in their 50’s, one from PA and one from NJ, and confirm them.

Democrats may fight to fill the Rendell seat with a moderate Democrat, arguing that Republicans stole the seat by Toomey’s indefensible obstruction of Haywood and citing President Clinton’s compromise nomination of Republican Judge Barry as a precedent. That was my view before, and it may still help as a bargaining position, but the fact is those sorts of arguments didn’t get Republicans in the seats filled by Greenaway and Vanaskie, so I don’t expect them to get a Democrat in Rendell’s seat, either.

Fourth and finally, the Fisher seat should be Trump’s to fill with the qualified nominee of his choosing. Judge Fisher waited to go senior until Trump took office, so it’s a Republican seat, fair and square.  If the administration wants a 38 year-old Federalist Society stalwart here, it should be able to. But I expect Casey to insist that this nomination be paired with the Rendell-seat nomination to protect his leverage.

This isn’t rocket science. The right answer is clear enough. The administration and the home-state Democratic senators ought to be able to work together amicably and expeditiously to fill these seats and get the Third Circuit finally back to full strength.

But if Trump tries to fill all three seats with young conservative partisans? Expect a war.

UPDATE: Professor Jonathan Adler has helpfully pointed out to me that the Eighth Circuit is now down to one woman active judge (Judge Diane Murphy took senior status in November), so the Third Circuit no longer has the worst gender imbalance of the circuits. Still.

Also, as Howard Bashman‘s How Appealing noted, Professor Orin Kerr responded to this post on Twitter here and here proposing Lee DeJulius, Stephanos Bibas, and Chris Paoelella (“assuming he’s Jersey enough”) for the three seats.

The Associated Press reported on Thursday that Third Circuit Judge Maryanne Trump Barry assumed inactive status, effective immediately. She will cease hearing cases; according to the report she is giving up her staff and chambers but can still serve on court committees. Chief Judge D. Brooks Smith complimented her in the story as “a talented judge with a knack for handling complex cases.”

Characteristically, Judge Barry did not announce a reason for stepping down now. She is 79 years old and has been a federal judge for over three decades, and that’s reason enough. But she also has landed in the headlines often over the last year and a half for reasons related to her brother, President Trump. I get the sense that she detests the controversial attention, and I can’t help wondering if that contributed to her decision to go inactive now.

Judge Barry is the second Third Circuit judge to assume inactive status in the past year, after Judge Sloviter did so last April.  The court now has only two active and two senior sitting women judges.

The news coverage over the past 24 hours has annointed Tenth Circuit Judge Neil Gorsuch as the favorite to be nominated for the Supreme Court by President Trump. I’m skeptical.

Gorsuch is the walking embodiment of the mainline GOP legal establishment: D.C. politico parent, Harvard Law, Scotus clerkship, fancy firm, Justice Department, feeder judge, dazzling writing. When Trump looks at Gorsuch, I think he sees John Roberts and Brett Kavanaugh and Merrick Garland.

I think he sees the guy Jeb Bush would beg him to choose.

Jeff Sessions, Sean Spicer, Steve Bannon, Jared Kushner, Linda freaking McMahon — every one of them is a Johnny Cash middle finger to establishment D.C. Republicans. And now he’s going to pick their darling for the Supreme Court? Anything’s possible, but it seems unlikely to me.

Judge Thomas Hardiman fits Trump’s core us-against-them political narrative in a way Gorsuch never can. The Supreme Court is filled with Ivy League grads and glittering resumes. Hardiman? Just ability and rock-solid conservatism. No Oxford, no Ivy League law degree, no clerkship, no prestigious stable of Scotus clerks, and no rhetorical flash. President Jeb might never have given him a second look: perfect.

The mainstream media all seem to think Gorsuch is the front-runner today. But if the choice really does come down to Gorsuch or Hardiman, I’m betting on Hardiman.

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.