Senate Confirmation Flips Makeup of Third Circuit

WASHINGTON (CN) – The Senate on Tuesday confirmed a Pennsylvania federal judge to a seat on the Third Circuit over opposition from the state’s Democratic senator, giving the Philadelphia-based appeals court a conservative majority.

Judge Peter Phipps, who was confirmed Tuesday for a seat on the Third Circuit Court of Appeals. (Photo via U.S. District Court for the Western District of Pennsylvania)

Tuesday marked the second time in less than a year that the Senate confirmed Judge Peter Phipps to a seat on a federal court. President Donald Trump nominated Phipps to a seat on the U.S. District Court for the Western District of Pennsylvania in February 2018 and the Senate unanimously confirmed the longtime Justice Department attorney to the court that October.

Trump then tapped Phipps for a promotion in May, nominating him to a position on the Third Circuit. Phipps’ confirmation with a 56-40 vote on Tuesday afternoon flips the makeup of the Third Circuit, giving the appeals court that hears cases from Delaware, New Jersey and Pennsylvania eight judges appointed by Republicans and six appointed by Democrats.

While Senator Bob Casey, D-Pa., supported Phipps’ nomination to the district court bench, he withdrew his support when Trump chose Phipps for the Third Circuit seat. While Casey said Phipps is a “person of strong character, great intellect and integrity,” he said he did not believe Phipps’ brief time on the federal bench gave him the experience necessary to sit on the appeals court.

Casey therefore refused to return his so-called blue slip for Phipps. The blue slip is a Senate courtesy that asks for a home-state senator’s consent before a nomination goes forward in committee. Under previous Senate tradition, a nomination would not proceed unless both of the nominee’s home-state senators returned a blue slip.

However, Senator Chuck Grassley, the Iowa Republican who chaired the Senate Judiciary Committee for the first two years of the Trump administration, said he would not allow home-state senators to use their blue slips to block nominees to federal appeals courts, which hear cases from multiple states.

Senator Lindsey Graham, the South Carolina Republican who now chairs the committee, has continued this policy. Both senators kept the blue slip in place for nominees to federal district courts.

Casey primarily argued that Phipps has not spent long enough on the district court to have earned a promotion to the appellate court. In response to questions senators submitted in writing after his nomination hearing, Phipps defended his qualifications by noting a majority of the American Bar Association Standing Committee on the Federal Judiciary rated him well-qualified.

Phipps also said his time on the district court bench, as well as his work in the Justice Department, private practice and academia have left him prepared to do the work of an appellate judge.

“Due to the volume of cases that were transferred to me, I have had the opportunity to adjudicate issues at all stages of litigation, across a broad spectrum of subject matter, in a wide range of procedural postures – from temporary restraining orders, to motions to dismiss, to discovery disputes, to summary judgment and to trial,” Phipps wrote. “Those experiences have provided me with additional insight into the creation of the record for potential appeal in each of those cases.”

Before taking the federal bench, Phipps spent 2003 to 2018 at the Justice Department, working in the Civil Division’s Federal Programs Branch as a trial attorney and senior trial counsel. He also spent time at the Columbus, Ohio, branch of the firm Jones Day and clerked for Judge R. Guy Cole, Jr., on the Sixth Circuit.

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