Peter Phipps – Nominee for the U.S. District Court for the Western District of Pennsylvania

A DOJ litigator with extensive experience in the federal courts, the 45-year-old Peter Phipps looks likely to join the Western District of Pennsylvania before the end of the year.

Background

Peter Joseph Phipps was born on April 8, 1973 at Dyess Air Force Base in Abilene, TX.[1]  Phipps attended the University of Dayton, getting a B.A. in History and a B.S. in Physics.[2]  He continued on to the Stanford University Law School, graduating with a J.D. in 1998.  He then joined the Washington D.C. Office of Jones Day (a firm that has sent many alumni to the Trump Administration and the federal bench).[3]

In 2001, Phipps left Jones Day to clerk for Judge R. Guy Cole on the U.S. Court of Appeals for the Sixth Circuit.  He then joined the Federal Programs Branch of the Civil Division of the U.S. Department of Justice.[4]  He is still with the same office in Washington D.C., working as Senior Trial Counsel.  Phipps has also served as an Adjunct Professor at Duquesne University School of Law in Pittsburgh since 2014.[5]

History of the Seat

The seat Phipps has been nominated for opened on September 30, 2013, with Judge Terrence McVerry’s move to senior status.  On July 30, 2015, President Obama nominated Judge Marilyn Horan from the Butler County Court of Common Pleas to fill the vacancy.[6]  The nomination of Horan, a Republican, was made as a package along with those of three Democrats to other vacancies.

While all four nominees in the package received a hearing on December 9, 2015, two of them, Judge Robert Colville, and Judge John Milton Younge, were blocked from Judiciary Committee consideration by Chairman Chuck Grassley, who was unhappy with their support of abortion rights.[7]  At the same time, Horan and Judge Susan Baxter were blocked by Senate Majority Leader Mitch McConnell on the Senate floor and were never confirmed.  Both were ultimately renominated by Trump.[8]

Phipps applied to the bipartisan judicial selection committee set up by Pennsylvania Senators Bob Casey and Pat Toomey in April 2017.[9]  Phipps interviewed with Toomey and Casey and was then recommended to the White House.  He was formally nominated on February 15, 2018.

Legal Experience

While Phipps’s primary legal occupation has been as a litigator at the Department of Justice, he began his career as an Associate in the Washington D.C. Office of Jones Day, representing corporations in civil litigation.[10]  Overall, Phipps has worked as counsel of record in three civil trials, as well as handling appellate matters in other cases.[11]

As Senior Trial Counsel at the Federal Programs Branch of the Department of Justice, Phipps litigated many contentious cases.  In one case, Phipps defended the U.S. Department of Housing and Urban Development against a class action suit brought by African American plaintiffs alleging racial discrimination in public housing.[12]  Through the litigation, which lasted ten years, Phipps worked through two separate trials, and managed to negotiate a settlement in the case.[13]

In another notable case, Phipps defended the constitutionality of the military’s “Don’t Ask, Don’t Tell” policy, which barred individuals engaging in homosexual conduct from serving openly in the armed forces.[14]  In yet another case, Phipps defended the constitutionality of HHS grants for faith based organizations that have religious objections to abortion and contraception.[15]

More recently, Phipps defended the constitutionality of the Professional and Amateur Sports Protection Act of 1992 (PASPA).[16]  PASPA’s constitutionality was challenged by New Jersey, which sought to legalize sports betting in its state in violation of the Act.[17]  Phipps represented the government in several suits before the District Court, the Third Circuit, and in certiorari arguments before the U.S Supreme Court.[18]

Overall Assessment

While Phipps, at 45, is a relatively young judicial nominee, his qualifications for the federal bench are unquestionable.  As an attorney with the Federal Programs Branch of the Department of Justice, Phipps has had experience in some of the most consequential litigation the Department engages in, preparing him well for the  issues he would face as a trial judge.

Skeptics may draw opposition based on Phipps’ defense of DADT and grants to faith-based organizations.  However, as an attorney at Federal Programs, Phipps has an ethical responsibility to present defenses to federal laws and regulations and his views in litigation cannot necessary be imputed as his personal views.

Overall, given that Phipps has the support of his Democratic and Republican home-state senators, as well as a fairly noncontroversial record, he looks set for a relatively painless confirmation.


[1] Sen. Comm. on the Judiciary, 115th Cong., Peter J. Phipps: Questionnaire for Judicial Nominees 1.

[2] Id.

[3] See id. at 2.

[4] See id.

[5] Id.

[6] Press Release, White House, President Obama Nominates Seven to Serve on the United States District Courts (July 30, 2015) (on file at https://obamawhitehouse.archives.gov).

[7] Philip Wegmann, After Facing Questions on Abortion, 2 Obama Judicial Nominations Fail to Advance, The Daily Signal, Jan. 29, 2016, http://dailysignal.com/2016/01/29/after-facing-questions-on-abortion-2-obama-judicial-nominees-fail-to-advance/.  

[8] Press Release, President Donald J. Trump Announces Ninth Wave of Judicial Nominees and Tenth Wave of United States Attorney Nominees (December 20, 2017) (on file at www.whitehouse.gov/thepressoffice).

[9] Sen. Comm. on the Judiciary, 115th Cong., Peter J. Phipps: Questionnaire for Judicial Nominees 24.

[10] Id. at 10.

[11] Id. at 11-12.

[12] Thompson v. HUD, No. 95-395 (D. Md.) (Garbis, J.) (Grimm, J.).

[13] See id.

[14] Witt v. United States Air Force, No. 06-5195 (W.D. Wash.) (Leighton, J.).

[15] American Civil Liberties Union of Northern California v. Hargan, No. 16-3539 (N.D. Cal.) (Beeler, M.J.).

[16] See NCAA v. Christie, Nos. 3:12-4947; 3:14-6450 (D.N.J.) (Shipp, J.); Nos. 13-1713,-1714,-1715 (3d Cir.); Nos. 14-4546,-4568,-4569 (3d Cir.) (subsequently en banc); Nos. 13-967; -979; -980, Nos. 16-476,-477 (U.S.).

[17] See id.

[18] Commonwealth v. Opperman, 780 A.2d 714 (Pa. Super. Ct. 2001).

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