Bench Memos

Law & the Courts

Liberal Groups’ Lame Attempts to Demonize a Respected Third Circuit Nominee


Pittsburgh attorney David Porter was recently nominated to the Third Circuit, and his credentials to serve are impeccable. Following a federal judicial clerkship for future Third Circuit Chief Judge D. Brooks Smith, he practiced for over 23 years at the prestigious firm Buchanan, Ingersoll & Rooney, where he has handled hundreds of litigation matters and acquired expertise on an extensive span of issues: constitutional law, election law, labor law, media law, intellectual-property law, banking law, corporate law, and civil rights.

For several years, he has been named to the Pennsylvania Super Lawyers list and included in The Best Lawyers in America list. Widely respected among his colleagues, he is an elected member of the American Law Institute, has served on the Pennsylvania State Advisory Committee of the U.S. Commission on Civil Rights, and was elected chair of the Federal Court and Civil Litigation sections of the Allegheny County Bar Association. Of the latter, prominent Pittsburgh criminal-defense lawyer Tina O. Miller wrote as she endorsed Porter’s nomination that “one does not become elected to the governing Council of the Federal Court Section, or become chair of the section, unless one has earned the respect of the lawyers, judges, and bar association leaders who represent the various interests of the entire federal bar.”

Nonetheless, Porter is being attacked by the left-wing Pennsylvania groups Keystone Progress and Why Courts Matter-Pennsylvania (WCM-PA). To be more precise, those groups are dusting off their attacks from 2014, when they helped scuttle a potential bipartisan recommendation to President Obama from Pennsylvania’s Republican and Democratic senators to nominate Porter to a district-court judgeship.

The basis for their opposition: Porter is a conservative whose views are supposedly “extreme.” Why? The specifics do not venture beyond the range of views and associations one would expect of any accomplished conservative attorney who is a leader in the profession:

  • Porter was an outspoken opponent of the Affordable Care Act (ACA). He wrote an op-ed in the Pittsburgh Post-Gazette while the law was being challenged in the Supreme Court arguing that it was unconstitutional. His views happened to be the same as those of the four Supreme Court justices who ultimately dissented from the Court’s judgment in that case, not to mention his home state of Pennsylvania, which had challenged the ACA.
  • He is a member of the Board of Trustees of Grove City College, an Evangelical school and his alma mater, and a contributor to the college’s Center for Vision and Values (CVV). In an odd attempt at guilt by association, WCM-PA links to a CVV-published essay and a CVV presentation announcement, neither of which involved Porter.
  • He is president of the Pittsburgh Lawyers Chapter of the Federalist Society. The Society has for years established itself as one of the nation’s premier professional organizations. Its members have included several Supreme Court justices and numerous federal circuit judges, and speakers participating in Federalist Society programs have included some of the nation’s leading liberal constitutional scholars. The Society does not take positions, but does regularly host experts on both right and left. Among them, the Pittsburgh Chapter hosted Roger Clegg, whose Center for Equal Opportunity has taken positions in favor of color-blind government policies and challenged the constitutionality of diversity-based racial quotas.
  • He has donated to Pennsylvania Republican lawmakers, a list that WCM-PA headlines as including former Senator Rick Santorum and current Senator Pat Toomey. The headline would have packed less ideological punch had it mentioned that Porter had also donated to former Senator Arlen Specter — a higher total, in fact, than he has given to Toomey. Such donations are not particularly noteworthy. What Porter donated to Pennsylvania’s incumbent Republican senator is less than 1 percent of what Judge William Orrick III bundled or donated to President Obama before he was appointed to the Northern District of California in 2013.
  • Dating back to John Adams’s representation of the British soldiers charged with murder after the Boston Massacre, there is a venerable American tradition of not disqualifying an attorney from public office based upon the identity of his or her clients, no matter how detestable they might be. The activists aligned against Porter have disregarded this tradition, attacking him based on the fact that his past clients include former Senator Santorum and Republican members of Pennsylvania’s state legislature, the latter in a case involving a challenge to a law that permitted natural gas drilling. These clients are not exactly enemies of America or serial killers, but perhaps they are just as alarming to ultra-left activists.
  • Porter was part of a network of conservatives (including WCM-PA’s bogeyman Rick Santorum) that organized in opposition to the confirmation of Judge Sonia Sotomayor to the Supreme Court. Thirty-one senators agreed and voted against her confirmation. Justice Sotomayor has since become arguably the most strident liberal on the Court.

The positions Porter’s critics identify with him outside the courtroom — even throwing in the ones that do not involve statements he himself made — align with the views of at least four recent or current Supreme Court justices: Scalia, Thomas, Alito, and very likely the recently appointed Gorsuch. If we exclude the issue of the ACA, add Chief Justice Roberts to make that five. If Porter were nominated to the Supreme Court, he would be in good company.

Of course, Porter has been nominated to a lower court, where he is bound to follow Supreme Court precedent. In addition to a number of diverse organizations supporting his nomination, two attorneys who are self-described staunch Democrats and who have known Porter for over 20 years have expressed unreserved confidence in his ability to serve on the Third Circuit. “I am absolutely confident that, if confirmed, he will decide every case based upon the applicable law and not upon politics or personal ideology,” asserted health-care attorney Thomas L. Vankirk. Corporate attorney Thomas M. Thompson attested that Porter “has the type of legal judgment, respect for precedent, temperament and calming influence that is much needed on the bench no matter which political leaning.”

But why listen to them when there is Michael Morrill, the founder of Keystone Progress, who never met Porter but nonetheless claimed “it’s hard to believe he would be a fair and even-handed judge”? Guess whose opinion will receive the most credence from Senate Democrats.

It is unremarkable, if regrettable, that these petty attacks blocked a conservative from being nominated by Obama back in 2014, but it would be a shame if anyone outside the echo chamber of liberal interest groups seriously bought the argument that Porter lacks the experience, character, or temperament to serve on the Third Circuit.

Carrie Severino — Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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