First Appeals Court ’Flips’ Control Under Trump

the judiciary with conservatives. The Third Circuit Court of Appeals in Philadelphia was the first circuit to flip with the addition of Paul Madie, who was a top league aid to Chris Christie when he was New Jersey's governor, joining me as Carl Tobias, sup Perfessor at the University of Richmond School of Law. Carl, the Third Circuit has had a centrist reputation until now. Tell us about that and whether it's likely to retain that reputation with the addition

of these three conservative judges by Trump. Well, it has had relatively moderate reputation over time, and that reflects partly the senators from those states and the local legal culture and the culture of the States. But it may be that the people who were confirmed who the president nominated their three now and there's a fourth. There's another vacancy, and that may well be filled soon. Uh, though there's not a nominee yet. UM mean that the court will

move from a moderate position to probably a more conservative one. Um. And I think that's true of the most recent nominee, as well as David Porter from Philadelphia. Less clear about the third nominee, who was teaching at the Pen Law School. Now, circuit courts work in panels of three judges except for the rare and bank hearings, So it's basically a flip of the coin which judges you get on your panel.

Will the odds of getting conservative panel really changed that much in the third circuit where you have seven judges appointed by Republicans and six by Democrats. I don't know the statistics, do you. Well, I think it will make some difference. Um, for sure. Um, there'll be a draw

that has more Republicans on. It depends on the issue. Uh. And it's a bit of a crude measure to talk about the appointing president, but by and large, the Republicans presidents tend to uh nominate a point more conservative people, and it's certainly true of President Trump. So maybe was confirmed by a vote of fifty four to forty five despite opposition from both home state Democratic senators from New Jersey. That's the second time that's happened in the Trump era.

Is this a new trend that will take away the little power the Democrats have to stop these nominations, Well, so far it is. And Senator Graham, who has taken over from Senator Grassley chair of Judiciary, has agreed to follow the policy that grasply used, and that is make

an exception for circuit nominees. And it's especially unconventional and goes back a hundred years to uh nominate and appoint someone over the opposition of to home state senators, which as you said, happened in Washington State, now has happened in New Jersey and could well happen in other states.

Which is a big mistake because the blue slips protect minority senators rights as well as the senator's home state constituents, so as to ensure that the judges is sit in their states reflect the culture and legal culture of the state. So you might have the same kind of situation happening if there's a democratic president. Well, Um Senator Horrono from Hawaii said that if a Democrat is elected in the future, that the Democrats are likely to follow what the Republicans

have done. And that's the problem. All of the customs of the Institution of the Senate have been eroded or viscerated recently, and so that means the home state protections for senators and constituents are undermined. Are there any other circuits now in danger of flipping? Well, the eleventh Circuit, which is Florida, Georgia and Alabama, is six six in terms of appointing presidents, but there's no vacancy now. If there were one and the president nominating confirmed someone, then

it would change the composition of that court. But that's the only one. I believe. There are a couple of others that are maybe one more Democratic appointed judge than Republican, and so there are a few others around the country. So, Carl, when you look at history, is this part for the core that the circuits flipped back and forth depending on the party holding the presidency and how long it holds the presidency. Yes, I think to some extent. That's really true.

As I said earlier, it's a bit of a crude measure, but it's a measure that many rely on who observed the courts, and so I think it does change over time depending on how many appointments the president gets and how much the president emphasizes that, and whether the president's party has control of the Senate. What people are worried about is that no one will be confirmed when there's

divided government. Um. And that's a fairly serious concern. Uh So that only uh people will only be confirmed when the president and the Senate majority are of the same party. That would certainly pose a problem for the courts, which

are understaffed already. Had there been any nominations that the Democrats really worked to oppose that went through anyway, Because you don't hear them really causing UH stint, well, I think they do if you watch them in committee meetings and committee discussions, um as people are voted out of committee, they've been very critical, uh and in hearings of some of the nominees, for example raw Um, who recently was confirmed to the DC Circuit this week, and others, certainly

the Washington Senators were outraged, as was Senator Booker and Senator Menendez. When you watched them on the floor in the committee, they were vociferously opposed really to the process. Not so much to Madie though Um. Senator Booker said he never even met made Um, and the White House just completely ignored the Senators in terms of consultation. So that's unfortunate and that should stop um. But I think Democrats have and they've been voting party line on the

floor for example. I think both were confirmed this week on party line votes. Does Senator fine Stein have any power as the ranking member, Well, some, and she works very closely with Senator Graham, and he shown some signs of working very closely with her. I don't want to forget the hundred twenty nine district vacancies nationwide that are really pressing the trial courts all over the country. All right, well, we will continue to monitor this. Thanks so much, Carl.

That's Carl Tobias. He's a professor at the University of Richmond School of Law. Thanks for listening to the Bloomberg Law Podcast. You can subscribe and listen to the show on Apple Podcasts, SoundCloud, and on Bloomberg dot com. Slash Podcast. I'm June Bolso, this is Bloomberg