In addition to flipping the Third Circuit, the Senate’s swift confirmation of Peter Phipps provides one big, if obvious, lesson that ought to energize the White House to move swiftly to fill the remaining federal appellate vacancies: The opposition from Senate Democrats is very weak.
Have in mind that home-state Democratic senator Bob Casey strongly opposed Phipps’s nomination and refused to return a positive blue slip. The Left further objected to Phipps on the ground that he would be the fourth consecutive white male appointed by President Trump to the Third Circuit. Despite these possible grounds of opposition, three Senate Democrats—Doug Jones, Joe Manchin, and Kyrsten Sinema—joined all 53 Senate Republicans in voting to confirm Phipps.
Second Circuit judge Dennis Jacobs announced in early March that he would be taking senior status on May 31. That date has come and passed without any nomination to fill his vacancy. Ditto for Christopher Droney who announced in April that he would be taking senior status on June 30. (And, yes, a nomination can occur to an announced future vacancy before that vacancy arises, and so can Senate confirmation. It is only the post-confirmation act of appointment that requires an existing vacancy. The very reason why many judges announce that they will be taking senior status is to help keep the period of vacancy as short as possible.)
If and when President Trump fills these seats, Republican-appointed judges on the Second Circuit will outnumber Democratic-appointed judges by a count of seven to six. And five of the seven Republican appointees will be Trump appointees.
Consultation with home-state Democratic senators (in New York for the Jacobs vacancy, in Connecticut for the Droney vacancy) is one thing, and should already have amply occurred by now. Negotiating with them is something very different, and there is no point in wasting time on it.