Senate Panel Advances Nominee for Third Circuit Bench

WASHINGTON (CN) – A Pennsylvania federal judge tapped by President Donald Trump for a seat on the Third Circuit breezed through his nomination hearing Wednesday, even as one of his home-state senators opposed his nomination.

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

The hearing marked U.S. District Judge Peter Phipps’ second time before the Senate Judiciary Committee, as he was confirmed in October to his seat on the U.S. District Court for the Western District of Pennsylvania.

Phipps was unanimously confirmed to his current position, but his path to the Third Circuit figures to be somewhat more contentious.

Senator Bob Casey, D-Pa., has said he will not support Phipps’ elevation to the appellate bench, raising concerns about his judicial philosophy and his short time on the U.S. District Court. Casey’s opposition will reignite the fight over the GOP’s handling of the so-called blue slip, a Senate tradition that has required both of a nominee’s home-state senators to sign off before the nomination can advance.

Senator Chuck Grassley, the Iowa Republican who chaired the Senate Judiciary Committee during the first two years of the Trump administration, did not allow home-state senators to hold up nominations to federal appeals courts, which hear cases from multiple states, so long as the White House consulted with lawmakers on the pick.

Senator Lindsey Graham, the South Carolina Republican who now chairs the committee, has continued Grassley’s policy and both have maintained that home-state senators will be able to hold up nominees to federal district courts in their states.

Casey introduced two nominees to federal district courts in Pennsylvania before they testified on Wednesday and made only oblique references to Phipps during the comments. Casey supports both William Stickman, nominated to a seat on the U.S. District Court for the Western District of Pennsylvania, and Jennifer Wilson, who is up for a seat on the U.S. District Court for the Middle District of Pennsylvania.

 “I have very strong opinions about the circuit court and blue slips, but in the interest of time, we’ll save that for another day,” Casey said at the hearing.

The debate over the blue slip tradition has been a staple of Judiciary Committee meetings during the Trump administration and Senator Patrick Leahy, D-Vt., lamented Graham’s handling of home-state senators’ wishes at Wednesday’s hearing for Phipps.

“I think it’s going to create enormous damage to the federal court,” said Leahy, a former Judiciary Committee chairman himself.

Phipps had a relatively smooth time before the committee Wednesday, as he told senators his career has left him prepared for a seat on the federal appellate bench.

Phipps told Senator John Kennedy, R-La., that while he does not label his judicial philosophy, he would consider himself a textualist. He also told Senator Josh Hawley, R-Mo., that he looks to the original public meaning of the Constitution or a statute when it comes before him, unless there is binding precedent from a higher court.

“Obviously I follow precedent on any constitutional or statutory phrase, but where there’s not binding and controlling precedent, I look to the original public meaning, the meaning that the states that ratified the Constitution understood those words to mean,” Phipps said during the hearing. “That’s what they voted on, that’s what they understood them to mean when they went and formed their constitutional conventions or went to their state legislatures and we got those supermajority approvals.”

Before taking the bench, Phipps spent 15 years working in the Justice Department’s Federal Programs Branch, most recently as senior trial counsel. Phipps clerked for U.S. Circuit Judge Guy Cole on the Sixth Circuit and spent time as an associate at the Columbus, Ohio branch of the firm Jones Day.

In addition to Phipps, the Judiciary Committee heard from Stickman, Wilson and U.S. District Court for the Southern District of Texas nominee Charles Eskridge. Each nominee spent little time before the committee, as Graham was the only senator to ask them questions.

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