News and Commentary

Third Circuit Becomes First Federal Circuit To ‘Flip’ Control Under Trump

Yesterday, the U.S. Senate confirmed, by a 54-45 vote, Paul Matey to be a judge on the U.S. Court of Appeals for the Third Circuit. The Third Circuit has federal appellate jurisdiction for the states of Pennsylvania, New Jersey, and Delaware. With the confirmation of Matey, the Third Circuit becomes the first of the 13 federal appellate circuits to “flip” control under President Donald Trump from majority Democratic nominees to majority Republican nominees.

USA Today reports:

For the first time, [Trump] turned a federal appeals court previously dominated by Democratic presidents’ nominees into one with a majority of Republican presidents’ choices.

Senate confirmation of Paul Matey to the U.S. Court of Appeals for the Third Circuit, with jurisdiction over Pennsylvania, New Jersey and Delaware, gave Trump and his GOP predecessors in the White House a 7-6 majority there. …

Matey, 48, a former top counsel to New Jersey Gov. Chris Christie, became Trump’s 35th appeals court nominee to reach the bench with seven more pending, continuing a record pace. The Senate also has confirmed 53 of Trump’s picks for federal district courts, with another 54 nominees pending.

As conservatives know all too well, the partisan identity of a nominating president is hardly an even remotely reliable indicator of a judge’s methodology and exegetical approach, once firmly ensconced on the bench. As but one example, despite having a firm “partisan” majority on the U.S. Court of Appeals for the Fifth Circuit, Second Amendment supporters were left disappointed last summer when the Fifth Circuit upheld, via an en banc vote, a controversial anti-gun federal statute.

Regardless, conservative legal commentator Ed Whelan, writing at National Review’s “Bench Memos” blog, has a full breakdown today of the current composition of the federal appellate courts based on the partisan identity of the judges’ nominating presidents (with “V” standing for “vacancy”):

CA1: 2 R, 4 D

CA2: 4 R, 7 D, with two existing vacancies and one future vacancy (could become 6 R, 7 D)

CA3: 7 R, 6 D, 1 V

CA4: 6 R, 9 D

CA5: 11 R, 5 D, 1 V

CA6: 10 R, 6 D

CA7: 9 R, 2 D

CA8: 10 R, 1 D

CA9: 8 R, 16 D, 5 V (will become 12 R, 16 D, 1 V if/when pending nominees are confirmed)

CA10: 5 R, 7 D

CA11: 6 R, 6 D

CADC: 4 R, 7 D (I’m counting in Neomi Rao, who was confirmed today)

CAFedCir: 4 R, 8 D

As Whelan mentions in his commentary on the U.S. Court of Appeals for the D.C. Circuit, Neomi Rao was also officially confirmed today to fill Justice Brett Kavanaugh’s vacated seat on that prestigious lower court.

As I wrote about at great length two weeks ago, the Rao nomination proved controversial even within the broader “legal conservative movement.” For example, Sen. Ted Cruz (R-TX), in his Senate Judiciary Committee statement explaining his decision to support Rao, was sure to note that his “assessment [of Rao’s nomination] might be very different were this a consideration for the U.S. Supreme Court and not for the D.C. Circuit.”