Bench Memos

Law & the Courts

Third Circuit to Flip?

With the news that Judge Thomas Vanaskie will take senior status this Friday, the Third Circuit is poised to be the first federal court of appeals to flip from a majority of Democratic appointees at the outset of the Trump administration to a majority of Republican appointees. (Four federal courts of appeals—the Fifth, Sixth, Seventh, and Eighth—began the Trump presidency with a majority of Republican appointees.)

When President Trump was inaugurated, the Third Circuit had seven Democratic appointees, five Republican appointees, and two vacancies. As of today, the court has seven Democratic appointees, six Republican appointees, and one vacancy. (Stephanos Bibas filled one of the vacancies, and David Porter replaced a Republican appointee, D. Michael Fisher, who took senior status early in 2017.)

The nomination of Paul Matey is pending in committee and should be acted on by the full Senate very soon.* Once Matey is appointed, the court will be evenly divided. And a successful replacement of Vanaskie (appointed to the Third Circuit by President Obama in 2010) would give Republican appointees an 8-to-6 margin.

(Assigning judges by party of the appointing president is of course an imperfect proxy for judicial philosophy.)

* I initially mistakenly stated that the Matey nomination was already on the Senate floor.

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