Paul Matey – Nominee for the U.S. Court of Appeals for the Third Circuit

After Judiciary Chairman Chuck Grassley’s reversal on blue slips, he has held hearings for nine nominees that lack blue slips from one or both home-state senators.  Of those, four have been confirmed on the floor and one has been rejected, the rest, including Paul Matey of New Jersey were blocked from a final vote by then-Sen. Jeff Flake’s objections.  In the new Congress without Flake, he remains a favorite to be confirmed.

Background

Paul Brian Matey was born in Edison, New Jersey on March 29, 1971.  Matey attended Scranton University and then spent four years working for Marvel Entertainment in New York City.[1]

In 1997, Matey joined Seton Hall University School of Law, graduating summa cum laude in 2001.[2]  Matey then clerked for Judge John Lifland on the U.S. District Court for the District of New Jersey and for Judge Robert Cowen on the U.S. Court of Appeals for the Third Circuit (Matey has been nominated for the seat that Cowen once held).

After his clerkships, Matey joined Kellogg, Hansen, Todd, Figel & Frederick LLC as an associate.  In 2005, Matey joined the U.S. Attorney’s Office for the District of New Jersey, working under U.S. Attorney Chris Christie.[3]  When Christie was elected Governor in 2009, Matey joined the Governor’s Office as Assistant Counsel.  He later was elevated to be Senior Counsel and Deputy Chief Counsel.

In 2015, Matey was hired to be General Counsel for University Hospital in Newark.[4]  He left this position in 2018 to become a Partner with Lowenstein Sandler LLP, where he works today.

History of the Seat

Matey has been nominated for a New Jersey seat on the U.S. Court of Appeals for the Third Circuit vacated by Judge Julio Fuentes.  Fuentes, a Democrat who was appointed by President Bill Clinton, moved to senior status on July 18, 2016.  As the vacancy opened up relatively late in the Obama Administration, no nominee was put forward to fill the seat.

Shortly after Trump’s election, Christie reached out to the Administration to recommend Matey for the Third Circuit.[5]  In August 2017, news outlets reported that New Jersey’s Democratic Senators, Robert Menendez and Cory Booker, had agreed to sign off on Matey in return for the nominations of Democrats to fill District Court vacancies.[6]  However, the deal never materialized and Matey wasn’t nominated until April 2018.  To date, no district court nominees have been put forward for New Jersey vacancies and Menendez and Booker has not returned blue slips on Matey.

Political Activity

As noted above, Matey worked for Christie when he served as Governor of New Jersey.  In addition, Matey’s only contribution of record is for Christie.[7]  Matey has also been a member of the Federalist Society for Law and Public Policy since 2001 and a member of the Republican National Lawyers Association since 2005.[8]

Legal Experience

While Matey started his legal career as an Associate at Kellogg, Huber, Hansen, Todd, Evans, and Figel PLLC in Washington D.C.[9], he is most known for his later positions with the U.S. Attorney’s Office, working for Gov. Chris Christie, as well as his time with University Hospital.

From 2005 to 2009, Matey worked as an Assistant U.S. Attorney under then-U.S. Attorney Chris Christie.  In this role, Matey worked primarily to prosecute complex white collar crimes, securities fraud, and healthcare fraud.  Matey also handled pornography cases.[10]

In 2010, when Christie was elected to be Governor of New Jersey, Matey joined his office to be Assistant Counsel, later becoming Senior Counsel and Deputy Chief Counsel.  In this role, Matey analyzed legislation, executive orders, and regulations, and gave legal advice to Christie.  Notably, Matey was Deputy Chief Counsel during the Bridgegate Scandal, when officials in the Christie Administration closed down much of George Washington bridge as political retribution against the mayor of Fort Lee.[11]  Matey was one of two officials who ultimately fired Bridget Anne Kelly, the individual who had authorized the lane closures.[12]

From 2015 to 2018, Matey worked as General Counsel for University Hospital in Newark.  Matey’s tenure has already been criticized by Sen. Cory Booker, who noted that patient safety ratings at the Hospital dropped from C to F during his time there.[13]

Writings and Speeches

While not an academic, Matey has written and elaborated on the law.  Much of his work is descriptive rather than normative.  For example, Matey authored an article explaining a recent New Jersey Supreme Court decision regarding the statute of limitations as it relates to toxic tort actions.[14]  Notably, in 2005, Matey co-authored a paper with Justice Neil Gorsuch criticizing securities class actions for creating “vast social costs.”[15]  In another 2003 paper, Matey argued that the First Amendment rights of network broadcasters should be evaluated based on the “market power of the broadcast content.”[16]  Matey argues that this approach would limit government regulation of the First Amendment rights of broadcasters with regard to areas such as Presidential Debates.[17]

Overall Assessment

Matey’s nomination has advanced, so far, without the support of New Jersey Senators Bob Menendez and Cory Booker.  Under the new blue slip regime, however, the lack of such support is not fatal.  That being said, Matey is still likely to face strong opposition based on his conservative judicial views, membership in the Federalist Society, and close associations to Christie.

Specifically, some may argue that Matey was handpicked over other better-qualified candidates due to his close association with Christie.  The ABA, notably, gave Matey a middling Qualified/Not Qualified rating.[18]

However, with a narrow Republican majority, Matey remains a favorite to be confirmed.  At this point, it would take four Republican defections to kill Matey’s nomination, a tall order as only one Trump nominee has seen that many defections on the floor, and those defections were from the right.  As such, it is likely that Matey will be confirmed in short order.


[1] Sen. Comm. on the Judiciary, 115th Cong., Paul Matey: Questionnaire for Judicial Nominees 1.

[2] See id.

[3] Id. at 2.

[4] See id. 

[5] See id. at 27-28.

[6] Andrew Seidman and Jonathan Tamari, Trump Poised to Nominate Christie Ally for U.S. Attorney in Complex Political Deal, Philadelphia Inquirer, Aug. 10, 2017, http://www2.philly.com/philly/news/politics/presidential/trump-poised-to-nominate-christie-ally-for-u-s-attorney-post-20170810.html.  

[7] Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=paul+matey&cycle=&state=&zip=&employ=&cand= (last visited Nov. 10, 2018).

[8] See Matey, supra n. 1 at 5.

[9] During his time at Kellogg, Matey did have a chance to work with then-partner Neil Gorsuch.

[10] See, e.g., United States v. Valenzuela, 07-CR-00412 (N.J. 2007); United States v. Adams, 07-CR-00859 (N.J. 2007).

[11] See Matt Katz, Exclusive: Inside Bridgegate, New Jersey Monthly, Jan. 18, 2016, https://njmonthly.com/articles/jersey-living/exclusive-inside-bridgegate/.  

[12] Id. 

[13] See Twitter, @CoryBooker, Nov. 13, 2018, https://twitter.com/corybooker/status/1062474801560895493?lang=en.  

[14] Paul B. Matey, Surveys of Recent Developments in New Jersey Law – Torts: The Discovery Rule, 30 Seton Hall L. Rev. 101 (2003).

[15] Neil Gorsuch and Paul Matey, Settlements in Securities Fraud Class Actions: Improving Investor Protection, Wash. Legal Found., Working Paper No. 128, 2005. 

[16] Paul B. Matey, Abundant Media, Viewer Scarcity: A Marketplace Alternative to First Amendment Broadcast Rights and the Regulation of Televised Presidential Debates, 36 Ind. L. Rev. 101, 102 (2003).

[17] Id. at 137.

Where are the Women: The Alarming Gender Gap Among Trump’s Judges

During the 2012 Presidential campaign, Republican candidate Mitt Romney was mocked for declaring that he had “binders full of women” ready to appoint to federal positions.  The phrase, while awkward, signaled Romney’s commitment to gender diversity in his appointments.  In contrast, President Trump’s appointments, from his US Attorneys to his executive appointments, have been overwhelmingly male.  This pattern is evident in his judicial appointments.

As of August 23, 2017, President Trump has named 36 nominees to Article III courts: 11 to the U.S. Court of Appeals; 24 to the U.S. District Courts; and Justice Neil Gorsuch to the U.S. Supreme Court.  Out of these 36 nominees, only seven are women.  In contrast, by August 2009, President Obama had nominated only 17 nominees, but had named just as many women: seven, including Justice Sonia Sotomayor to the U.S. Supreme Court.

Comparatively, only 19% of President Trump’s judicial nominations are women, a lower percentage than the last three presidents, and comparable with the nominations made by President George H.W. Bush.  The ratio is particularly skewed in nominations to the U.S. District Courts.  Only four out of 24 District Court nominations have gone to women.

Out of the seven female nominees, three replace departing female judges and four replace male judges.  In contrast, six of the male nominees put forward replace female judges.  In other words, with the confirmation of these nominees, for the first time since the Eisenhower Administration, the overall number of active female judges would go down.

It is still early, and the Trump Administration could pick up the pace and appoint more women to the federal bench.  However, the tea leaves are not promising.  Rather, the nominees the Administration have in the works are also, generally, male:

  • DC Circuit – While the Administration was looking at four well-qualified female candidates to fill the vacancy left by Judge Janice Rogers Brown’s retirement, the expected nominee, Deputy White House Counsel Greg Katsas, is male.
  • Second Circuit – The Administration has pitched four candidates to New York Senators Chuck Schumer and Kirsten Gillibrand to fill two 2nd circuit vacancies: all four candidates are male.
  • Third Circuit – The Administration is preparing to nominate Paul Matey to fill one of two vacancies without a nominee.  For the other vacancy, the Administration is mulling David Porter.  Both candidates are male.
  • Fifth Circuit – The Administration is weighing four male candidates for two vacancies on the court.
  • Seventh Circuit – The White House has interviewed three men to replace Judge Ann Claire Williams.
  • Ninth Circuit – The leading candidates for vacancies in Arizona, California, and Oregon are all men.
  • Tenth Circuit – Three male attorneys are being considered for the New Mexico seat vacated by Judge Paul Kelly.
  • Eleventh Circuit – The list of candidates being considered for the vacancy by Judge Frank Hull (a woman), is mostly male, but does include female Georgia Supreme Court Justice Britt Grant.

The Administration and its supporters will argue that this doesn’t matter.  As long as the nominees put forward are qualified, their gender is irrelevant.

While this is true on the individual level, such an argument is based around the erroneous assumption that the only way a female candidate would be chosen over a male one is due to emphasis on diversity.  This is patently false.  Women make up approximately 35% of the legal profession, and this percentage is increasing sharply. Furthermore, the federal bench (the elite of the judiciary) is already one third female.   As such, producing a pool of nominees that is only 19% female suggests an inability to consider qualified female nominees, rather than a slavish devotion to quality.

Since FDR was in office, every single administration appointed a greater percentage of women to the federal bench than the previous administration of their party.  Unless corrective measures are taken, the Trump Administration looks set to break that trend.

Update – I wanted to address a reader inquiry.  The reader in question wanted to know why the relevant barometer for comparison was the percentage of women in the legal profession, rather than the percentage of women in organizations like the Federalist Society, from where Trump draws his appointees.  Three responses.

First, federal judges primarily serve the rule of law and the general public.  As such, it is particularly important that the public maintain faith in the judiciary.  Numerous studies have shown that when female or minority judges are left off the bench, that both the quality and perception of justice suffer.  As such, you judge the diversity of federal judges based on those appearing in court before them.

Second, the Federalist Society does not constitute the entirety of conservative lawyers.  While the membership of the Federalist Society may be predominantly white and male, there are other sources of conservative women.  Furthermore, District Court appointments, where the gender gap is particularly bad, generally do not come from the Federalist Society.  In most cases, the male nominees being chosen are themselves not members of the Federalist Society.  As such, it is difficult to believe that Federalist Society membership is the basis on which female judges are being ignored.

Third and most importantly, the pool of conservative attorneys that Trump is drawing upon for his nominees is essentially the same as the pool tapped by past Republican Presidents.  Over ten years ago, despite women making up only about 25% of the legal community, President Bush managed to have women constitute 22% of his appointees.  Twenty five years ago, President George H.W. Bush essentially matched Trump’s current 19% despite working with a female legal population that was substantially lower than what Trump has now.  When these past presidents, whose nominees were equally conservative, could maintain parity between the percentage of women in their appointments and the percentage of women in the legal community, there is no reason why President Trump cannot do so.