Judge Susan Paradise Baxter – Nominee for the U.S. District Court for the Western District of Pennsylvania

A well-respected magistrate judge with over twenty-two years on the bench, Judge Susan Paradise Baxter is a consensus nominee from the Trump Administration.  Her moderate background and support from senators of both parties, as well as her previous nomination from President Obama, should ensure a relatively smooth confirmation process.

Background

A Western Pennsylvania native, Baxter was born Susan Rose Paradise on September 20, 1956, in Latrobe, in the Pittsburgh suburbs.[1]  Baxter attended Pennsylvania State University, overlapping with fellow nominee Marilyn Horan, and graduating with a B.S. in 1978.  Baxter went on to get a Masters in Education and then a Juris Doctor from Temple University.[2]

After graduating, Baxter joined Cole Raywid & Braverman (now Davis Wright & Tremaine LLP) in Washington D.C. as an associate.  In 1989, Baxter became a partner at the firm.

In 1994, Baxter returned to Pennsylvania to serve as a court solicitor for the Court of Common Pleas for Erie County.[3]  A year later, Baxter was named to be a federal magistrate judge for the U.S. District Court for the Western District of Pennsylvania.[4]  Baxter continues to serve in that position today.

History of the Seat

The seat Baxter has been nominated for opened on August 16, 2013, with the resignation of Judge Sean McLaughlin.  In August 2013, Baxter applied for a federal judgeship with the application committee set up by Pennsylvania’s U.S. Senators Bob Casey (D-PA) and Pat Toomey (R-PA).[5]  Baxter interviewed with Casey and his staff in early 2015 and with Toomey in March of that year.[6]  In July 2015, Baxter was then nominated by President Obama for the vacancy on the U.S. District Court for the Western District of Pennsylvania.[7]

While Baxter had bipartisan support for the seat and was unanimously voted out of the Judiciary Committee in January 2016, she never received a floor vote and her nomination was returned at the end of the 114th Congress.

In January 2017, Toomey and Casey indicated their support for re-nominating Baxter for the Western District.  Baxter was officially re-nominated for the vacancy on December 20, 2017.[8]

Legal Experience

From 1983 to 1992, Baxter worked as an associate and a partner at Cole Raywid & Braverman in Washington D.C.  At the firm, Baxter handled approximately 100 cases, going to trial in ten cases.[9]  Among the most significant matters that Baxter handled at the firm, she represented a class of over one hundred former employees and stockholders of U.S. News & World Report in bringing an ERISA action.[10]  In 1994, Baxter’s family moved to Erie and Baxter worked as the Solicitor to the Erie County Court of Common Pleas, representing the judges on the court .[11]

Jurisprudence

Baxter has served as a federal magistrate judge for the last twenty two years.  During this time, Baxter handles pretrial matters in criminal and civil cases, as well as offering reports and recommendations to district court judges.[12]  Baxter also presides over civil cases with the consent of both parties, handling 20 cases to verdict and judgment over her tenure on the bench.[13]  Baxter has also written over 1300 opinions.[14]

Among her more prominent cases, Baxter presided over a class action suit under the Americans with Disabilities Act (ADA) challenging the lack of wheelchair ramps in many Erie intersections.[15]  Baxter certified the class of plaintiffs in the case, and presided over the entry of a consent decree to ensure compliance with the ADA.[16]  In another notable case, Baxter presided over unsuccessful settlement negotiations related to alleged Clean Air Act violations committed by the Erie Coke Corporation.[17]

Over the last twenty two years, Baxter has been reversed approximately nineteen times in over 1300 decisions she has made.[18]  In seventeen cases, Baxter’s report and recommendation was adopted by the district court, but the decision was ultimately reversed by the U.S. Court of Appeals for the Third Circuit.[19]  In two cases, Baxter’s report and recommendation was rejected by the district court, but was ultimately imposed by the Third Circuit.[20]

Political Activity

While Baxter is a Democrat, she has not been involved with any political party or campaign.[21]

Overall Assessment

Generally speaking, any nominee put forward by two administrations of different political parties is likely to be fairly uncontroversial.  Baxter is no different.  Her record on the bench reflects a close adherence to precedent and her low reversal rate suggests her relatively mainstream jurisprudence.  Furthermore, she has largely avoided controversial positions throughout her career and has the enthusiastic support of her home state senators (both of different political parties).  As such, Baxter will likely be confirmed swiftly with a strong bipartisan majority.


[1] Sen. Comm. on the Judiciary, 114th Cong., Susan Paradise Baxter: Questionnaire for Judicial Nominees 1.

[2] See id.

[3] See id. at 2.

[4] See id. 

[5] See id. at 50-51.

[6] Id.

[7] 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).

[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] See Baxter, supra  n. 1 at 43.

[10] See Foltz v. U.S. News & World Report, Inc., Case No. 84-447 (D.D.C.).

[11] See Baxter, supra n. 1 at 43.

[12] See Baxter, supra n. 1 at 17.

[13] See id.

[14] Id.

[15] See Barrier Busters v. City of Erie, Civil Action No. 02-203 Erie.

[16] See id.

[17] Lisa Thompson, Erie Coke, Regulators Reach No Settlement: Erie Coke Case Goes to Judge After Settlement Negotiations Stall, Erie Times-News, Apr. 1, 2010.

[18] See Baxter, supra n. 1 at 33-37.

[19] See Haskell v. Superintendent Greene, SCI, Civil Action 10-249 Erie, 2015 WL 5227855 (W.D. Pa. Sept. 8, 2015), rev’d, 866 F.3d 139 (3d Cir. 2017) (reversing district court denial of writ of habeas corpus based on the state’s use of perjured testimony); Byrd v. Aaron’s, Inc., Civil Action 11-101 Erie, 2014 WL 1316055 (W.D. Pa. Mar. 31, 2014), rev’d and remanded, 784 F.3d 1154 (3d Cir. 2015) (reversing denial of class certification); Henry v. City of Erie, Civil Action 10-260 Erie, 2011 U.S. Dist. LEXIS 110562 (W.D. Pa. Sept. 28, 2011), rev’d and remanded, 728 F.3d 275 (3d Cir. 2013) (reversing denial of motion to dismiss based on qualified immunity); Tindell v. Penn., Civil Action 11-173 Erie (decision to revoke prisoner’s in forma pauperis due to three-strikes rule reversed by 3d Circuit); Torrence v. Sobina, Civil Action 10-217 Erie, 2011 WL 4473122 (W.D. Pa. Sept. 11, 2011), vacated and remanded, 455 Fed. Appx. 140 (3d Cir. Dec. 27, 2011) (reversed denial of plaintiff’s claims based on Eleventh Amendment immunity and remanded to dismiss for failure to exhaust); Mutschler v. SCI Albion CHCA, Civil Action 09-265 Erie, 2010 WL 3809849 (W.D. Pa. Sept. 23, 2010), aff’d in part and rev’d in part, 445 Fed. Appx. 617 (3d Cir. Sept. 27, 2011) (reversing dismissal of Eighth Amendment claim of deliberate indifference); DiLauri v. Mullen, Civil Action 09-198 Erie, 2011 WL 1428092 (W.D. Pa. Apr. 13, 2011), adopted by 2011 WL 2415243 (W.D. Pa. June 13, 2011), aff’d in part and vacated in part, 477 Fed. Appx. 944 (3d Cir. 2012) (reversing dismissal of plaintiff’s claims based on failure to plead involvement of defendants); Cauvel v. Schwan Home Servs. Inc., Civil Action 08-134 Erie, 2010 WL 5476698 (W.D. Pa. Dec. 31, 2010), rev’d and remanded, 458 Fed. Appx. 131 (3d Cir. Jan. 20, 2012) (reversing grant of summary judgment where genuine issue of material fact existed); Royster v. United States, Civil Action 07-228 Erie, 2010 WL 936764 (W.D. Pa. Mar. 11, 2010), rev’d and remanded, 475 Fed. Appx. 417 (3d Cir. Mar. 30, 2012) (reversing dismissal of FTCA claim for failure to exhaust); Nicholas v. Corbett, Civil Action 06-129 Erie, 2007 WL 1163694 (W.D. Pa. Apr. 18, 2007); Alston v. Forsyth, Civil Action 05-168 Erie, 2010 WL 95089 (W.D. Pa. Jan. 6, 2010), rev’d and remanded, 379 Fed. Appx. 126 (3d Cir. 2010) (reversing grant of summary judgment to defendant); Grier v. Klem, Civil Action 05-05 Erie, rev’d and remanded, 591 F.3d 672 (3d Cir. Jan. 12, 2010) (reversing dismissal of 1983 action based on intervening Supreme Court jurisprudence); Davila-Bajana v. Holohan, Civil Action 04-253 Erie, rev’d and remanded, 309 Fed. Appx. 606 (3d Cir. Feb. 5, 2009) (reversing dismissal of Eighth Amendment claim due to failure to exhaust); Armann v. Warden-McKean, Civil Action 04-118 Erie, 2006 WL 2882954 (W.D. Pa. Oct. 6, 2006), adopted by 2007 WL 1576407 (W.D. Pa. May 31, 2007), rev’d, 549 F.3d 279 (3d Cir. 2008) (reversing recommendation for evidentiary hearing in military tribunal challenge); Cooleen v. LaManna, Civil Action 04-63 Erie, rev’d and remanded, 248 Fed. Appx. 357 (3d Cir. 2007) (reversing dismissal of Eighth Amendment claim); Camp v. Brennan, Civil Action 98-180 Erie, aff’d in part and rev’d in part, 219 F.3d 279 (3d Cir. 2000) (reversing dismissal for failure to exhaust); Nelson v. Jashurek, Civil Action 95-97 Erie, rev’d and remanded, 109 F.3d 142 (3d Cir. 1997) (reversing dismissal of excessive force claim).

[20] See UPS Freight v. Nat’l Union Fire Ins. Co., Civil Action 06-137 Erie, 2007 WL 1880962 (W.D. Pa. June 26, 2007), vacated by 428 Fed. Appx. 168 (3d Cir. 2011); Jewell v. Reno, 297 F.3d 305 (3d Cir. 2002) (rejecting district court dismissal, contrary to magistrate recommendation, of plaintiff’s as-applied challenge).

[21] See Baxter, supra n. 1 at 40-41.

To Renominate or Not to Renominate: A Question For Any Incoming President

At the end of 2020, as the 116th Congress came to an end, it sent back around thirty judicial nominations unconfirmed to President Trump.  Now, as the Biden Administration prepares to take office, it faces a critical question: how many of them, if any, should they renominate to the federal bench.

This is a question facing every incoming Administration, as the old one almost inevitably leaves some judicial nominees unconfirmed.  While putting forward nominees from the prior administration can help with judicial dealmaking and efficiency, it also risks upsetting the President’s base.  So far, no Administration has chosen to renominate all of their predecessor’s pending judges, instead making that determination on an ad hoc basis.

Johnson to Nixon

At the end of the Johnson Administration, for example, two Supreme Court nominees (Abe Fortas to be Chief Justice; and Homer Thornberry to be Associate Justice); one circuit court nominee (Barefoot Sanders for the D.C. Circuit); and three district court nominees (David Bress to District Court for the District of Columbia; Cecil Poole to the Northern District of California; William Byrne to the Central District of California) were left unconfirmed.  President Nixon chose not to renominate any of the Johnson holdovers at the outset of his Administration, instead picking the following:

  • Judge Warren Burger to be Chief Justice of the Supreme Court
  • George MacKinnon to the D.C. Circuit
  • Barrington Daniels Parker to the District Court for D.C.
  • Judge Gerald Levin to the Northern District of California
  • Judge David Williams to the Central District of California

However, in 1971, Nixon did choose to nominate Byrne to a different seat on the Central District of California, where he served until his death in 2006.

Ford to Carter

For his part, after the resignation of Nixon, President Ford largely maintained the same nominees.  However, after his own loss in 1976, Ford had two appellate nominees and eight district court nominees pending before the U.S. Senate.  President Carter chose not to renominate any of the ten.  However, he did later nominate Richard Bilby, who Ford had unsuccessfully put up for a Ninth Circuit seat, for the District of Arizona, where he served until his death in 1998.

Carter to Reagan

At the end of the Carter Administration, the Senate left four appellate nominees and twelve district court nominees pending.  On January 1, 1981, Carter appointed one of the pending nominees, Judge Walter Heen, to the District of Hawaii using a recess appointment.  For his part, President Reagan declined to renominate Heen, letting his appointment expire at the end of the year.  He did, however, renominate two other judges:

  • I. Leo Glasser for the Eastern District of New York
  • John Sprizzo for the Southern District of New York

Reagan to Bush

Perhaps because it was a transition between two Presidents of the same party, President George H.W. Bush was more open to renominating his predecessor’s nominees.  At the end of his term, President Reagan left seven appellate nominees pending:

  • Judith Richards Hope for the D.C. Circuit
  • Stuart Summit for the Second Circuit
  • Jacques Wiener for the Fifth Circuit
  • Ferdinand Francis Fernandez for the Ninth Circuit
  • Pamela Rymer for the Ninth Circuit
  • Guy Hurlbutt for the Ninth Circuit
  • Susan Leibeler for the Federal Circuit

Bush chose to renominate three of the seven (Wiener; Fernandez; and Rymer), who were all confirmed.  To fill the other seats, Bush chose Clarence Thomas, John Walker, Thomas Nelson, and Jay Plager respectively.

Reagan also left ten district court nominees pending:

  • Howard Levitt for the Eastern District of New York
  • James McGregor for the Western District of Pennsylvania
  • Adriane Dudley for the Virgin Islands
  • Marvin Garbis for the District of Maryland
  • Shannon Mason for the Eastern District of Virginia
  • Melinda Harmon for the Southern District of Texas
  • Robert Bonner for the Central District of California
  • Vaughn Walker for the Northern District of California
  • William Erickson for the District of Colorado
  • Donald Abram for the District of Colorado

Of those ten, Bush chose to renominate five (Garbis; Dudley; Harmon; Bonner; Walker).  All of them except for Dudley were confirmed.   For the other seats, Bush nominated the following:

  • Carol Amon for the Eastern District of New York
  • Donald Lee for the Western District of Pennsylvania
  • Rebecca Beach Smith for the Eastern District of Virginia
  • Daniel Sparr for the District of Colorado
  • Edward Nottingham for the District o Colorado

Bush also chose to renominate McGregor to a different seat on the Western District of Pennsylvania in 1990, where he was ultimately blocked by conservative opposition.

Bush to Clinton

At the conclusion of the Bush Administration, ten appellate nominees and forty two district court nominees were left unconfirmed, a significantly higher number than previous Administrations.  Of these fifty two nominees, President Clinton renominated none of the appellate nominees and just two of the district court nominees.

  • David Trager for the Eastern District of New York
  • Joanna Seybert for the Eastern District of New York

However, later in the Administration, Clinton nominated an additional two nominees from the leftover list to different seats.

  • George O’Toole for the District of Massachusetts
  • Richard Casey for the Southern District of New York

Of the remaining forty eight nominees not renominated under Clinton, thirteen were renominated for federal judgeships by President George W. Bush.

  • John Roberts for the D.C. Circuit (subsequently elevated to the Supreme Court)
  • Franklin Van Antwerpen for the Third Circuit
  • Jay Waldman for the Third Circuit (passed away before the Senate could act on the nomination)
  • Terrence Boyle for the Fourth Circuit (never confirmed)
  • Carlos Bea for the Ninth Circuit (Bea had been unsuccessfully nominated to the Northern District of California by H.W. Bush)
  • William Quarles for the District of Maryland
  • Leonard Davis for the Eastern District of Texas
  • Andrew Hanen for the Southern District of Texas
  • Percy Anderson for the Central District of California
  • John Walter for the Central District of California
  • Larry Hicks for the District of Nevada
  • Ronald Leighton for the Western District of Washington
  • James Payne for the Northern District of Oklahoma (jointly with the Eastern and Western Districts)

Clinton to Bush

Similar to George H.W. Bush before him, President Clinton faced an opposition Senate through his final term, and thus, a number of his appellate and district court nominees were left unconfirmed at the end of his term.  Specifically, the Senate did not process seventeen appellate nominees and twenty four district court nominees before the end of the 106th Congress.  In response, President Clinton appointed one of his appellate nominees, Roger Gregory to the Fourth Circuit in a recess appointment.

For his part, George W. Bush renominated three of Clinton’s appointments.  Specifically, Bush renominated:

  • Judge Roger Gregory for the Fourth Circuit
  • Judge Legrome Davis for the Eastern District of Pennsylvania
  • Judge David Cercone for the Western District of Pennsylvania

Additionally, later in his tenure, President Bush renominated an additional two stalled Clinton appellate nominees as part of an agreement with Democrats:

  • Judge Helene White for the Sixth Circuit
  • Judge Christine Arguello for the Tenth Circuit (nominated to the District of Colorado)

Bush to Obama

At the end of the Bush Administration, the Senate left ten appellate and twenty district court nominees unconfirmed.  Of the thirty pending nominees, President Obama renominated just one: Marco Hernandez for the District of Oregon.

However, later in his Administration, Obama nominated another two of the stalled Bush nominees to the federal bench:

  • Judge John Tharp for the Northern District of Illinois
  • William Jung for the Middle District of Florida (never confirmed)

Incidentally, Obama also renominated three stalled Clinton appointees:

  • Judge Andre Davis for the Fourth Circuit
  • Judge James Wynn for the Fourth Circuit
  • Judge Dolly Gee for the Central District of California

Obama to Trump

Due to a dramatic slowdown of confirmations in the last two years of his Presidency, President Obama saw 59 judicial nominees left pending before the Senate, more than any other President in recent history.  This list included one nominee to the U.S. Supreme Court, seven to the courts of appeal, and forty four nominees to the district courts.

Over the course of his term, President Trump renominated sixteen of these nominees, more than any other president in the last fifty years.  Specifically, he renominated:

  • Judge Mary McElroy for the District of Rhode Island
  • Judge Gary Brown for the Eastern District of New York
  • Diane Gujarati for the Eastern District of New York
  • Judge John Milton Younge for the Eastern District of Pennsylvania
  • Judge Susan Paradise Baxter for the Western District of Pennsylvania
  • Judge Marilyn Horan for the Western District of Pennsylvania
  • Judge Robert Colville for the Western District of Pennsylvania
  • Judge Stephanie Gallagher for the District of Maryland
  • Donald Coggins for the District of South Carolina
  • Karen Gren Scholer for the Northern District of Texas (previously nominated to the Eastern District)
  • James Hendrix for the Northern District of Texas
  • Walter Counts for the Western District of Texas
  • David Nye for the District of Idaho
  • Kathleen O’Sullivan for the Western District of Washington (announced but withdrawn before confirmation)
  • Scott Palk for the Western District of Oklahoma
  • William Jung for the Middle District of Florida

Trump also renominated four nominees who stalled under President Bush (not including Jung who is accounted for above).

  • Thomas Marcelle for the Northern District of New York (never confirmed)
  • Colm Connolly for the District of Delaware
  • Thomas Farr for the Eastern District of North Carolina (never confirmed)
  • David Novak for the Eastern District of Virginia

Trump to Biden

President Trump leaves office with twenty six unconfirmed judicial nominees, including one appellate nominee (Judge Raul Arias-Marxuach to the First Circuit); and 21 district court nominees.  These nominees are largely focused on two states: New York, which has six pending nominees; and California, which has ten.  Outside those two states, the remaining five unconfirmed district court picks are:

  • Judge Barbara Jongbloed for the District of Connecticut
  • Jennifer Togliatti for the District of Nevada
  • Fred Federici for the District of New Mexico
  • Brenda Saiz for the District of New Mexico
  • Edmund LaCour for the Middle District of Alabama

Of those five, three: Federici, Saiz, and LaCour, were blocked by Democratic home state senators, and, as such, would be unlikely to be renominated in a Biden Administration.  Jongbloed is a Democrat chosen by Senators Blumenthal and Murphy who cleared the Judiciary Committee unanimously before stalling on the floor.  However, she’s also 61 years old and relatively middle-of-the-road.  Without a Republican Administration, it is more likely that the Senators push for a younger candidate rather than seeking to renominate Jongbloed.  This leaves Togliatti as the most likely contender in this group for renomination.

In addition, the New York and California groups are packages that include a number of Democrats, who could all potentially be renominated.  This includes:

  • Jennifer Rearden for the Southern District of New York
  • Hector Gonzalez for the Eastern District of New York
  • Judge Steve Kim for the Central District of California
  • Judge Sandy Leal for the Central District of California
  • Knut Johnson for the Southern District of California
  • Shireen Matthews for the Southern District of California

In addition, Biden may look to the thirty five Obama nominees who were not renominated by Trump.  Of those, many are likely too old to be considered for nomination today, but the following could be considered for current vacancies:

  • Inga Bernstein for the District of Massachusetts (Bernstein turns 60 this year so she may be passed over for a younger candidate)
  • Julien Neals for the District of New Jersey (will almost certainly be renominated)
  • Anne Traum for the District of Nevada (will likely be renominated)
  • Beth Andrus, Kathleen O’Sullivan, and J. Michael Diaz for the Western District of Washington (will likely be renominated)
  • Regina Rodriguez for the District of Colorado

Additionally, the following could be considered for renomination if vacancies open:

  • Rebecca Ross Haywood for the Third Circuit
  • Judge Lucy Koh for the Ninth Circuit or the Federal Circuit
  • Stephanie Finley for the Western District of Louisiana
  • Judge E. Scott Frost for the Northern District of Texas
  • Judge Irma Ramirez for the Northern District of Texas
  • Edward Stanton for the Western District of Tennessee
  • Clare Connors for the District of Hawaii
  • Judge Suzanne Mitchell for the Western District of Oklahoma
  • Judge Patricia Barksdale for the Middle District of Florida
  • Judge Philip Lammens for the Northern or the Middle Districts of Florida

As a bottom line, every President since Nixon has renominated at least one of their predecessor’s failed nominees for the federal bench.  As such, it would not be surprising to see at least a few unconfirmed nominees from the past two Administrations put forward again by President Biden.

Understanding Blue Slips: What Are They and Why Do They Matter?

On March 21, 2017, President Trump made his first lower court nomination: Judge Amul R. Thapar for a seat on the Sixth Circuit Court of Appeals.[1]  With over 136 current and future vacancies on the federal bench,[2] more nominees will likely follow.  With a Republican majority in the Senate, the elimination of the filibuster on lower court nominations, and conservative groups howling for blood, there is little incentive for Trump to choose moderates for the bench. However, one Senate practice may work to constrain Trump’s more conservative nominees and encourage him to work with Democrats: the blue slip.

The History of the Blue Slip (From Cumberland to Biden)

Derived from the traditions of senatorial courtesy, the blue slip is named after the traditional blue paper it is printed on.  When a nominee is submitted to the Senate Judiciary Committee, “blue slips” are sent to the Senators representing the nominee’s home state.  The Senators then return the blue slip, indicating either approval or disapproval of the nominee.  If a home state Senator expresses opposition to a nominee, or refuses to return a blue slip, the Committee does not move the nomination to the floor.

The blue slip practice has a long history, going back at least one hundred years.[3]  The first example of a Senator using a blue slip to oppose a nominee dates back to the Wilson Presidency, when Senator Thomas Hardwick (D-GA) objected to the nomination of U. V. Whipple.[4]  Whipple’s nomination was subsequently rejected by the full Senate.

While the practice of using blue slips dates back a century, there is no consistent practice as to the effect of a negative blue slip on a nominee.  For approximately the first forty years of blue slip practice, a negative blue slip did not stop all action on a nominee.[5]  However, in 1956, Chairman James Eastland (D-MS) modified committee policy, indicating that a negative blue slip (or failure to return one) would act as a veto on committee consideration of a nominee.[6]In 1979, the rule changed again under new Chairman Edward Kennedy (D-MA), who stated that, in the absence of positive blue slips, he would have the committee vote on whether to proceed on consideration of the nominee.[7]  In 1980, the Committee held a hearing on the nomination of James Sheffield despite a negative blue-slip from home state Senator James Byrd (I-VA).[8]

In 1981, with President Ronald Reagan in office with a new Republican Senate, incoming Chairman Strom Thurmond (R-SC) announced that he would continue Kennedy’s blue slip policy, and would not necessarily view negative blue slips as reasons not to proceed on a nomination.[9]  In 1983, Thurmond processed (and the Senate later confirmed) John Vukasin to a seat on the Northern District of California, over the objection of Senator Alan Cranston (D-CA).[10]  In 1986, he held a hearing on the nomination of Albert Moon despite the objections of both his home state Senators, Daniel Inouye (D-HI) and Spark Matsunaga (D-HI).[11]

In 1987, Democrats retook the majority, and Joseph Biden (D-DE), the incoming Chairman, announced a new blue slip policy.  Under Biden’s policy, negative blue slips would only block committee consideration in cases where the White House failed to adequately consult with home state Senators before choosing the nominee.[12]  Under this new policy, the Committee processed (and the Senate confirmed) Vaughn Walker to a seat on the Northern District of California over the objection of Senator Cranston.[13]

The Blue Slip in the Clinton and Bush Presidencies

In 1994, the “Republican Revolution” swept a new majority into the U.S. Senate, and propelled Senator Orrin Hatch (R-UT) to the Chairmanship of the Judiciary Committee.  While Hatch indicated that he would continue to follow Biden’s modified blue slip policy, in application, his policy allowed Senators could veto judicial nominations from their home state.

Notably, Senator Jesse Helms (R-NC) blocked the nominations of three Clinton choices for North Carolina seats on the Fourth Circuit, Judges James Beaty, James Wynn and J. Rich Leonard.[14]  Similarly, Judge Helene White and Kathleen McCree Lewis, both nominated to Michigan seats on the Sixth Circuit were blue-slipped by Senator Spencer Abraham (R-MI), while Jorge Rangel and Enrique Moreno, nominated for Texas seats on the Fifth Circuit were blocked by Senator Phil Gramm (R-TX).[15]

In 2001, when President Bush came to office, Hatch announced a modification in his blue slip policy, indicating that he would move forward on nominees, even without blue slips, provided that the White House had consulted with the home state Senators over the vacancies.[16]

In 2003, Hatch moved the nomination of Carolyn Kuhl to the Ninth Circuit through Committee despite not receiving a blue slip from Senator Barbara Boxer (D-CA).[17]  Later that year, Hatch moved three Michigan nominees to the Sixth Circuit over the objections of Senators Debbie Stabenow (D-MI) and Carl Levin (D-MI).[18]  All four nominees, however, were blocked through filibusters by Senate Democrats.

In 2006, Democrats retook control of the U.S. Senate.  Incoming Judiciary Committee Chairman Patrick Leahy (D-VT) announced that he would only move on judicial nominees that had two blue slips returned.  As such, during the last two years of the Bush Presidency, a number of nominees were blue-slipped by Democratic Senators.  For example, Senators Jack Reed (D-RI) and Sheldon Whitehouse (D-RI) blocked consideration of Judge William Smith for a seat on the First Circuit.[19]  Similarly, Senator Mary Landrieu (D-LA) blocked the nomination of David Dugas to a judgeship on the Middle District of Louisiana.[20]

The pressure of blue slip approval forced the White House to start making “package deals” with Democratic Senators, offering them a chance to recommend nominees in exchange for their support for the White House’s picks.  In one notable instance, the Administration agreed to nominate previously blue-slipped Clinton nominee Helene White for the Sixth Circuit, in exchange for Michigan’s Democratic Senators supporting Raymond Kethledge, who had been nominated for a second seat.[21]  In another case, the White House agreed to withdraw the nomination of Judge Gene Pratter to a seat on the Third Circuit, instead nominating Judge Paul Diamond, who was deemed acceptable to Senator Bob Casey (D-PA).[22]

Blue Slips in the Obama Presidency

In 2009, with the Obama Administration making judicial nominations, Leahy reiterated his blue slip policy, indicating that he would not move any nominees without blue slips from both the home state senators.  This strict policy gave Republican Senators significant leverage over the Obama Administration in discussions over judicial nominations.  The first Senator to exercise the blue slip privileges was Senator David Vitter (R-LA), who blocked the nomination of Brian Anthony Jackson to a seat on the Middle District of Louisiana until the White House committed to keeping Bush-era U.S. Attorney Jim Letten on the job.[23]  Upon a White House commitment to keep Letten, Vitter returned his blue slips and allowed Jackson to be confirmed.

While Vitter used the blue slip process to secure support for an unrelated nomination, other Senators used it to protect their prerogative to choose nominees for the state.  Senators James Inhofe (R-OK) and Tom Coburn (R-OK) used the blue slip process to block confirmation on Arvo Mikkanen’s nomination to a seat on the Northern District of Oklahoma, claiming they were not consulted before the nomination was made.[24]  Similarly, Senators John Cornyn (R-TX) and Kay Bailey Hutchison (R-TX) refused to approve any nomination to Texas courts that was not vetted through their selection committee, cutting Democrats out of the process.[25]  Senators Ron Johnson (R-WI) and Dan Coats (R-IN) blocked the nominations of Victoria Nourse and Myra Selby respectively to seats on the Seventh Circuit Court of Appeals, arguing that the nomination should emerge from a bipartisan nominating committee.[26]

Other Senators used blue slips to block nominees based on substantive objections.  Senators Lindsay Graham (R-SC) and Tim Scott (R-SC) blocked Judge Alison Renee Lee’s nomination to serve on the U.S. District Court for South Carolina based on allegations that she was “soft-on-crime”.[27]  Senator Dean Heller (R-NV) blocked the nomination of Judge Elissa Cadish for the U.S. District Court in Nevada based on her pre-Heller opinion that the Second Amendment does not protect the right to bear arms for an individual.[28]

On rare occasions, the White House was able to successfully use leverage to force a blue-slipping Senator to give way.  Senator Robert Menendez (D-NJ), for example, was forced to withdraw his blockade of Judge Patty Shwartz for a seat on the Third Circuit under pressure from liberal groups.[29]  Similarly, pressure from civil rights groups pushed Sen. Marco Rubio (R-FL) to return a blue slip on Judge Brian Davis’ nomination to the Middle District of Florida.[30]

Not all Republican Senators exercised their blue-slip leverage s vigorously.  Some took a more hands-off approach, allowing the White House and their Democratic colleagues to take the lead on judicial nominees for their state.  Sen. John Boozman (R-AR), for example, supported the nominations of five Arkansas judges proposed by his colleague Sen. Mark Pryor (D-AR).[31]  Similarly, Senators Lamar Alexander (R-TN) and Bob Corker (R-TN) backed two circuit and six district court appointments by the Obama Administration.[32]  Additionally, they supported the Administration’s unsuccessful nomination of Edward Stanton to a seat on the U.S. District Court for the Western District of Tennessee.[33]  Senator Roy Blunt (R-MO) returned blue slips on every judicial nominee for his state, regardless of whether he supported the nominee on the merits.  Notably, he opposed the nomination of Judge Ronnie White to serve on the the Eastern District of Missouri, and Stephen R. Bough to serve on the Western District of Missouri, but nonetheless allowed the nominees to be considered by the committee, and eventually confirmed.[34]

Other Republican Senators used the leverage of blue slips to work out nomination deals with their Democratic colleagues.  Senators Bob Casey (D-PA) and Pat Toomey (R-PA) worked out a deal that would allow Toomey to put forward one district court judge for every three that Casey named.  Under this deal, Toomey was able to secure the confirmation of several Republican judges.[35]   Senators Dick Durbin (D-IL) and Mark Kirk (R-IL) had a similar deal, which allowed Kirk to name a number of Republicans to the Northern District of Illinois.[36]

In other states, the White House was forced to work out package deals with Republican Senators that would allow long-vacant judgeships to be filled.  By 2013, the overworked court in Arizona, had six out of its thirteen judgeships vacant due to an impasse between Senator John McCain (R-AZ) and the White House over the nomination of Rosemary Marquez.[37]  Marquez was eventually confirmed as part of a package deal with five other nominees, including McCain protege Diane Humetewa.[38]  Similarly, the White House was able to appoint David Hale, a Democrat, to the Western District of Kentucky only when paired with Greg Stivers, a Republican.[39] 

The Administration’s willingness to work with Republican Senators on nominations was tempered by pressure from its own base.  For example, in 2013, the White House and Senators Saxby Chambliss (R-GA) and Johnny Isakson (R-GA) announced a deal that would fill two seats on the Eleventh Circuit and four seats on the Northern District of Georgia.[40]  One of the nominees proposed by the Senators, Judge Michael Boggs, attracted fierce opposition from civil rights groups due to his anti-gay rights stances as a state legislator.[41]  Ultimately, the White House was forced to jettison Boggs, and leave the seat vacant.

At times, even pre-approving nominees with Republican Senators did not guarantee their future support.  Notably, Senator Pat Roberts (R-KS) initially expressed support for the nomination of Steve Six to the Tenth Circuit.  However, under pressure from conservative groups, he and Sen. Jerry Moran (R-KS) came out in opposition to Six shortly after his hearing, essentially killing his nomination.[42]  Similarly, Obama’s nomination to the Northern District of Georgia after Boggs, Judge Dax Erik Lopez, a Republican and a member of the conservative Federalist Society, was blocked by Sen. David Perdue (R-GA) after conservative groups objected to Lopez’s membership in Latino civic organizations.[43]  Sen. Rubio blocked two nominees to the Southern District of Florida, Judge William Thomas, and Mary Barzee Flores, after initially indicating his support to the White House.[44]

Ultimately, Leahy’s strict adherence to blue slips placed the Obama Administration in an impossible situation.  Republican Senators frequently rejected nominees proposed by the Administration while either failing to offer names of their own, or suggesting picks that were too conservative.  As negotiations over nominees fell apart, many states with Republican Senators saw vacancies linger unfilled for years.

Blue Slips in the Age of Trump

Shortly after the election of President Trump, Judiciary Committee Chairman Chuck Grassley (R-IA) announced that he would continue to honor the strict blue slip policy that Leahy set out.[45]  This theoretically gives Democrats the same leverage over judicial nominations that Republicans had in the Obama Administration.  In previous Republican administrations, Democratic Senators generally took a hands-off approach to judicial nominations, rejecting nominees only when they were viewed as too extreme.  However, after the increased use of blue slipping under the Obama Administration, it is possible that Democrats will be emboldened to demand pre-approval of judicial nominees.  As such, the Administration may have to rely on package deals in states with Democratic Senators, agreeing to nominate Democrats to some seats on the federal bench.

Additionally, Republican Senators are themselves pushing for the renomination of Obama nominees left unconfirmed at the end of the 114th Congress.  Senators Mike Crapo (R-ID) and Jim Risch (R-ID) have already asked Trump to renominate Judge David Nye, the unconfirmed Obama selection for a vacancy on the U.S. District Court in Idaho.[46]  Senator Toomey has asked Trump to renominate Judge Susan Paradise Baxter, a Democrat nominated by Obama for a seat on the Western District of Pennsylvania.[47]

With Republicans in the majority, and the filibuster for lower court nominations abolished, the blue slip is one of the only tools Democrats have to temper the ideology of Trump’s judicial nominations.  While Republicans used it to great effectiveness to prevent Obama from filling vacancies, it remains to be seen how aggressively Democrats will wield the blue slip.


[1] Press Release, The White House, President Donald J. Trump Announces Intent to Nominate Judge Amul R. Thapar for the U.S. Court of Appeals for the Sixth Circuit (Mar. 21, 2017) (on file with the White House).

[3] See Mitchel A. Sollenberger, The History of the Blue Slip in the Senate Committee on the Judiciary, 1917-Present, CRS Report for Congress (Oct. 22, 2003), http://congressionalresearch.com/RL32013/document.php.

[4] Id. 

[5] See id. (noting that the objections of Senator Theodore Bilbo did not stop the confirmation of Judge Edwin Holmes to the Fifth Circuit).

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10]See id.

[11] Id. (noting that Moon was never confirmed).

[12] Id.

[13] Id.

[14] See J. Rich Leonard, I Got the Merrick Garland Treatment: Appeals Court Nominee, USA Today, Apr. 6, 2016, http://www.usatoday.com/story/opinion/2016/04/07/former-nominee-modern-confirmation-process-judicial-nominees-senate-constitution-column/82446356/.

[15] Amy Steigerwalt, Battle Over the Bench: Senators, Interest Groups, and Lower Court Nominations 62 (University of Virginia Press 2010).

[16] See Sollenberger, supra n. 3.

[17] Id.

[18] Id.

[19] Cf. Zachary McCune, Federal Judge Appointment Stalled for Flanders ‘71, The Brown Daily Herald, Feb. 6, 2007, http://www.browndailyherald.com/2007/02/06/federal-judge-appointment-stalled-for-flanders-71/ (noting the Senators’ support for another candidate, Robert Flanders).

[20] Avery Davidson, Sen. Landrieu Admits to Blocking the Appointment of David Dugas, WAFB 9NEWS, Feb. 15, 2008, http://www.wafb.com/story/7881770/sen-landrieu-admits-to-blocking-the-appointment-of-david-dugas?clienttype=printable&redirected=true.

[21] Ken Thomas, Bush Nominates Michigan Appellate Judge to Sixth Circuit, Foxnews.com, Apr. 15, 2008, http://www.foxnews.com/printer_friendly_wires/2008Apr15/0,4675,JudicialNominees,00.html.  

[22] The Associated Press, Bush Backs Five For Bench in State, Pittsburgh Tribune, July 25, 2008, http://triblive.com/x/pittsburghtrib/news/regional/s_579380.html.

[23] Sen. David Vitter Holding Up Obama Nominations for Word on Jim Letten, The Times-Picayune, Jan. 10, 2010, http://www.nola.com/politics/index.ssf/2010/01/sen_david_vitter_holding_up_ob.html.

[24] Editorial Board, Mystery Surrounds Rejection of Mikkanen Judicial Nomination, The Oklahoman, Dec. 20, 2011, http://newsok.com/article/3633391.

[25] Gary Martin, Texas Democrats Rap Obama on Judicial Posts, MySA, July 2, 2011, http://www.mysanantonio.com/opinion/columnists/gary_martin/amp/Texas-Democrats-rap-Obama-on-judicial-posts-1449451.php.

[26] See Craig Gilbert, Ron Johnson ‘Filister’ of Nourse Nomination to Federal Bench Draws Fire, Milwaukee Journal Sentiel July 18, 2011, http://archive.jsonline.com/blogs/news/125741928.html; Marilyn Odendahl, Indiana’s Judicial Nominees Headed Toward Disappointment, The Indiana Lawyer, Dec. 28, 2016, http://www.theindianalawyer.com/indianas-judicial-nominees-headed-toward-disappointment/PARAMS/article/42372.

[27] Ali Watkins, S.C. Sen. Tim Scott Joins Opposition to Nomination of State Judge, McClatchy D.C. Bureau, July 17, 2014, http://www.mcclatchydc.com/news/politics-government/congress/article24770623.html.  

[28] Laura Myers and Steve Tetreault, Heller Stands Firm Against Nevada Judicial Nominee, Las Vegas Review Journal, Apr. 10, 2012, http://www.reviewjournal.com/news/government/heller-stands-firm-against-nevada-judicial-nominee.

[29] Humberto Sanchez, Menendez Bows to Political Pressure, Backs Obama’s Judicial Nominee, Roll Call, Jan 13, 2012, http://www.rollcall.com/news/menendez_bows_to_pressure_backs_obamas_judicial_nominee-211490-1.html.

[30] Alex Leary, Rubio Releases Hold on African-American Judicial Candidate But Continues to Block Another, The Tampa Bay Times, Sept. 19, 2013, http://www.tampabay.com/blogs/the-buzz-florida-politics/rubio-releases-hold-on-african-american-judicial-candidate-but-continues/2142787.

[31] See Press Release, Office of Sen. John Boozman, Senate Clears P.K. Holmes to Serve as U.S. District Judge for Western District (Feb. 7, 2011) (on file at www.boozman.senate.gov); Press Release, Office of Sen. John Boozman, Pryor, Boozman Announce Nomination of Susan Hickey for U.S. District Judge for the Western District of Arkansas (Apr. 6, 2011) (on file at www.boozman.senate.gov); Press Release, Office of Sen. John Boozman, Senate Confirms Kris Baker for U.S. District Judge for the Eastern District of Arkansas (May 7, 2012) (on file at www.boozman.senate.gov); Press Release, Office of Sen. John Boozman, Pryor, Boozman Applaud Confirmation of Judge Jay Moody as U.S. District Judge for the Eastern District of Arkansas (Feb. 25, 2014) (on file at www.boozman.senate.gov); Press Release, Office of Sen. John Boozman, Pryor, Boozman Congratulate Timothy Brooks on Confirmation as U.S. District Judge for the Western District of Arkansas (Mar. 5, 2014) (on file at www.boozman.senate.gov).

[32] See Tom Humphrey, Nashville Lawyer Stranch Confirmed for 6th Circuit Judgeship, Knoxville Blogs, Sept. 14, 2010, http://knoxblogs.com/humphreyhill/2010/09/14/nashville_lawyer_stranch_confi/; Tom Humphrey, Senate Confirms Memphis Judge for 6th Circuit Court of Appeals, Knoxville Blogs, Sept. 7, 2011, http://knoxblogs.com/humphreyhill/2011/09/07/_washington_-_us_senator/; Kevin Sharp ‘93 Confirmed to Seat on U.S. District Court for the Middle District of Tennessee, Vanderbilt Law School Blog, May 3, 2011, https://law.vanderbilt.edu/news/kevin-sharp-93-confirmed-to-seat-on-u-s-district-court-for-the-middle-district-of-tennessee/; Press Release, Office of Sen. Bob Corker, Alexander, Corker on Upcoming Senate Vote on Judge John Thomas Fowlkes Jr., of Memphis, to be U.S. District Judge for the Western District of Tennessee (Jun. 20, 2012) (on file at www.boozman.senate.gov); Georgiana Vines, Pamela Reeves, Federal Court Nominee, Draws Praise, Knoxville News Sentinel, May 18, 2013, http://archive.knoxnews.com/news/columnists/georgiana-vines/georgiana-vines-pamela-reeves-federal-court-nominee-draws-praise-ep-358247730-355838351.html; Tom Humphrey, Senate Confirms Appointment of University of Memphis Administrator as Federal Judge in West Tennessee, Knoxville Blogs, Apr. 30, 2014,http://knoxblogs.com/humphreyhill/2014/04/; Zack Petersen, Mayor Berke’s Former Chief-of-Staff Unanimously Confirmed as Federal Judge, Chattanooga Times Free Press, Dec. 7, 2015, http://www.timesfreepress.com/news/local/story/2015/dec/07/chattanoogas-travis-mcdonough-confirmed-federal-judge/339361/; Mary Troyan, Senate Confirms Waverly Crenshaw for Federal Judgeship, Tennessean, Apr. 11, 2016, http://www.tennessean.com/story/news/2016/04/11/senate-confirms-waverly-crenshaw-federal-judgeship/82898132/.     

[33] Michael Collins, Edward Stanton Unlikely to be Confirmed as Federal Judge, USAToday, Nov. 10, 2016, http://www.tennessean.com/story/news/politics/2016/11/10/edward-stanton-unlikely-confirmed-federal-judge/93598860/.

[34] See Chuck Raasch, Senate Confirms St. Louis’ Ronnie White as Federal Judge, St. Louis Post-Dispatch, Jul. 16, 2014, http://www.stltoday.com/news/local/govt-and-politics/senate-confirms-st-louis-ronnie-white-as-federal-judge/article_c758368a-534d-59e1-8ad6-5367e272c5e6.html; Steve Kraske, Senate Confirms Kansas City Lawyer Steve Bough for Federal Judgeship, Kansas City Star, Dec. 16, 2014, http://www.kansascity.com/news/local/news-columns-blogs/the-buzz/article4541083.html.

[35] Judge Matthew Brann for the Middle District of Pennsylvania; and Judges Jeffrey Schmehl, Edward Smith, and Jerry Pappert to the Eastern District of Pennsylvania.

[36] Judges John Tharp, Thomas Durkin, Manish Shah, and John Robert Blakey.

[37] Lee Fang, After Blocking a Judicial Nominee to the Arizona District Court, McCain Falsely Claims the Nomination Was Never Made, ThinkProgress, Sept. 1, 2011, https://thinkprogress.org/after-blocking-a-judicial-nominee-to-arizona-district-court-mccain-falsely-claims-the-nomination-was-ff2c0ee9280d.

[38] William Peacock, Esq., AZ’s 6 New Federal Judges Include 1st Female Native American Fed. Judge, FindLaw, May 16, 2014, http://blogs.findlaw.com/ninth_circuit/2014/05/arizs-6-new-judges-include-1st-female-native-american-fed-judge.html.

[39] Andrew Wolfson, 2 Judges Confirmed in Ky’s Western District, Louisville Courier-Journal, Dec. 4, 2014, http://www.courier-journal.com/story/news/local/2014/12/04/judges-confirmed-kys-western-district/19910589/.

[40] See Daniel Malloy, Obama Nominates Leslie Abrams – Stacey’s Sister – for Federal Judgeship, Atlanta Journal Constitution, Mar. 11, 2014, http://politics.blog.ajc.com/2014/03/11/obama-nominates-leslie-abrams-staceys-sister-for-federal-judgeship/.

[41] Jonathan Allen, Civil Rights Leaders to Hit Obama, Politico, Dec. 23, 2013, http://www.politico.com/story/2013/12/civil-rights-leaders-to-hit-obama-on-judges-101473.

[42] Editorial Board, Steve Six Deserved Better, The Wichita Eagle, July 29, 2011, http://www.kansas.com/opinion/editorials/article1078676.html.

[43] Greg Bluestein, David Perdue Blocks Latino Judicial Nominee, Atlanta Journal Constitution, Jan. 21, 2016, http://politics.blog.ajc.com/2016/01/20/david-perdue-wont-back-dax-lopezs-judicial-nomination/.

[44] See Lizette Alvarez, Rubio Withdraws Support for Gay Black Judge’s Nomination for Federal Bench, N.Y. Times, Sept. 23, 2013, http://www.nytimes.com/2013/09/24/us/politics/rubio-withdraws-support-for-gay-black-judges-nomination-to-the-federal-bench.html; Jay Weaver, Sen. Marco Rubio Blocks Confirmation of Judge He Recommended, Miami Herald, Jun 4, 2016, http://www.miamiherald.com/news/politics-government/article81786967.html.

[45] Joe Palazzolo, Donald Trump Looks to Put His Stamp on Federal Courts, Wall Street Journal, Nov. 11, 2016, https://www.wsj.com/articles/donald-trump-looks-to-put-his-stamp-on-federal-courts-1478892603.

[46] Betsy Russell, Sens. Crapo, Risch Standing By Nye Nomination; Trump Administration Also May Support It, Eye on Boise, Nov. 14, 2016, http://www.spokesman.com/blogs/boise/2016/nov/14/sen-crapo-risch-standing-nye-nomination-trump-administration-also-may-support-it/.

[47] Ed Palatella, Nomination Process Reset for Erie Federal Judgeship, GoErie.com, Feb. 28, 2017, http://www.goerie.com/news/20170228/nomination-process-reset-for-erie-federal-judgeship.

Where We Stand: Assessing Vacancies and Nominations in the Federal Judiciary – The Atlantic Coast

We are in the August recess, a little more than six months into the Biden Presidency. When President Biden came to office on January 20, 2021, there were 52 current and future vacancies in the federal judiciary. Since that time, an additional 73 vacancies have opened and nine nominees have been confirmed, leaving 116 vacancies pending (including future vacancies). There are currently 26 more judicial nominees pending, meaning that 22% of vacancies have nominees. In comparison, by the August recess of 2017, President Trump had nominees pending for around 20% of vacancies. Given the lull during the recess, now is a good time to look at the landscape of federal judicial nominations: vacancies open; nominations pending; prospective openings. Last week, we covered the states in the Northeast. We move on to the Atlantic Coast.

Third Circuit

Court of Appeals

The fourteen judgeship Third Circuit, covering the states of Delaware, New Jersey, and Pennsylvania, has ping-ponged between narrow majorities of Republican-appointed and Democrat-appointed judges over the last two decades. Nonetheless, it has maintained a reputation for collegiality and moderation. Currently, the court has four judges appointed each by Presidents Bush, Obama, and Trump and two judges appointed by President Clinton. The Court has one vacancy for President Biden to fill, to be vacated by Clinton-appointee Theodore McKee upon confirmation of his successor. With McKee’s announcement coming just a couple of weeks ago, a nomination will likely not be made until October or November at the earliest.

Other than McKee, two judges are currently eligible for senior status. Chief Judge D. Brooks Smith, a moderate appointed by President Bush, has been a federal judge since 1988, has been eligible for senior status since 2016, has announced his selection as Penn State Law’s jurist in residence, and will end his tenure as Chief on December 4, 2021 (his 70th birthday). All of these signs suggest that Smith will either take senior status or retire upon the conclusion of his term as Chief, but this is, by no means, guaranteed. The other eligible judge is Clinton-appointee Thomas Ambro, who has made no indications that he plans to vacate his Delaware-based seat.

Furthermore, two more judges become eligible for senior status next year. Bush appointee Kent Jordan, based in Delaware, becomes eligible for senior status on October 24, 2022, and may choose to vacate his seat at that time. Obama appointee Joseph Greenaway has been a federal judge since 1996 and may choose to vacate his New Jersey based seat upon eligibility on November 16, 2022. Either way, it would not be surprising if an additional vacancy opened on the Third Circuit before the end of the 117th Congress.

Delaware

In theory, the district court in the President’s home state is unlikely to see any vacancies this Congress. However, both Judges Leonard Stark and Maryellen Noreika have been proposed as nominees to the Federal Circuit, and both could also be considered for the Third Circuit if Ambro or Jordan moved to senior status. If either or both are nominated, the resulting vacancies could allow Biden to expand his impact on the local district court.

New Jersey

Due to a standoff between New Jersey Senators Robert Menendez and Cory Booker and the Trump Administration, no judges were appointed to the District of New Jersey in the last four years. As a result, when Biden came into office, six out of the seventeen judgeships on the court were vacant. Since then, Biden has filled two of the vacancies, with Judges Julien Neals and Zahid Quraishi. Two more nominees, Christine O’Hearn and Judge Karen Williams, are currently pending on the Senate floor, while two vacancies, both in Newark, remain without nominees.

Of the eleven active judges on the court, only one, Chief Judge Freda Wolfson, is eligible for senior status, although Judge Noel Hillman will hit eligibility on December 22 of this year. Wolfson, a Democrat appointed to the Court by President Bush, may choose to serve out her term as Chief (in 2024), while Hillman, another Bush appointee, has made no announcements about taking senior status.

Pennsylvania

Pennsylvania is divided into three district courts: the Eastern District, based in Philadelphia; the Western District, based in Pittsburgh; and the Middle District, based in Harrisburg. Traditionally, Pennsylvania senators divided judicial nominations on a 3-1 ratio, with the White House appointing one judge of the opposing party for three of their own party. Examples of cross-party appointments include Judges Yvette Kane and R. Barclay Surrick under President Clinton; Judges Legrome Davis, Timothy Savage, David Cercone, and C. Darnell Jones under Bush; Judges Matthew Brann, Jeffrey Schmehl, Edward Smith, and Jerry Pappert under Obama; and Judges Susan Baxter, Robert Colville, and John Milton Younge under Trump. This tradition is expected to continue under Biden.

Currently, there are four vacancies on the Eastern District, and one vacancy on the Middle District. Pennsylvania Senators Bob Casey, a Democrat, and Pat Toomey, a Republican, opened applications for the Eastern District in January 2021 with a February 8 application deadline. They similarly opened applications for the Middle District vacancy in June 2021 with an application deadline of July 8, 2021. In the past, Casey and Toomey refrained from making their recommendations public, and, as such, no names are expected to come to light until announced by the White House.

In addition to the current vacancies, a number of judges are eligible for senior status. Specifically, Chief Judge Juan Sanchez, and Judges Cynthia Rufe, Gene Pratter, and Paul Diamond on the Eastern District are currently eligible to take senior status. Additionally, in October, Judge Robert Mariani on the Middle District becomes eligible for senior status. Judge Christopher Conner of the Middle District also reaches eligibility on October 25, 2022. In contrast, the Western District is unlikely to see any vacancies open this Congress, as the earliest any judge reaches eligibility is in 2024.

Fourth Circuit

Court of Appeals

The Fourth Circuit Court of Appeals used to have a reputation as one of the most conservative courts in the country. However, after President Obama named seven judges to the court in his two terms, the Court underwent an ideological transformation. Today, the Court frequently divides into a 9-6 liberal-conservative divide in en banc votes. The Fourth Circuit currently is composed of Judge J. Harvie Wilkinson, a Reagan appointee; Judge Paul Niemeyer, a George H.W. Bush appointee; Judges Diana Motz, Robert King, and Roger Gregory, Clinton appointees (although Gregory was confirmed as a George W. Bush appointee, he was recess appointed to the Court by President Clinton); Judge Steven Agee, a George W. Bush appointee; Judges Barbara Keenan, James Wynn, Albert Diaz, Henry Floyd, Stephanie Thacker, and Pamela Harris, Obama appointees; and Judges Julius Richardson, Marvin Quattlebaum, and Allison Rushing, Trump appointees.

Of the 15 judges on the court, eight are currently eligible for senior status, and a ninth becomes eligible next year. However, despite this, only one vacancy has been announced so far on the court, with Keenan taking senior status on August 31, 2021. Biden has already nominated Virginia Solicitor General Toby Heytens to replace Keenan. After a smooth confirmation hearing, Heytens is expected to reach the Senate floor in September, with a final confirmation vote by the end of October. Given the sheer number of Fourth Circuit judges who are eligible for senior status, it would not be surprising to see an additional vacancy or two open up before the end of the 117th Congress.

Maryland

The U.S. District Court for the District of Maryland has already undergone a change in the current Administration, as Biden has named two judges to the court: Lydia Griggsby and Deborah Boardman. In addition, the ten judgeship court has a third vacancy that awaits a nomination: with Judge Ellen Lipton Hollander taking senior status upon confirmation of a successor. A fourth vacancy could potentially open next year as Judge Paul Grimm becomes eligible for senior status on December 6, 2022.

North Carolina

While the three judicial districts that cover North Carolina (the Eastern, Middle, and Western) do not currently have any vacancies, two judges are eligible for senior status, Judge Terrence Boyle on the Eastern District, an appointee of President Reagan, and Judge Max Cogburn, an appointee of President Obama. As such, there remains the possibility that additional vacancies may open in North Carolina this Congress.

South Carolina

The U.S. District Court for the District of South Carolina currently lacks judicial vacancies and only has one judge eligible for senior status, George H.W. Bush appointee David Norton. However, a vacancy may also open next year if Judge Juliana Michele Childs is elevated to the Fourth Circuit or if Judge Richard Gergel takes senior status upon reaching eligibility.

Virginia

Divided between the Eastern and Western Districts, Virginia is served by 15 active judgeships. Currently, Virginia has three Clinton appointees, one Bush appointee, five Obama appointees, and four Trump appointees, with the remaining two judgeships vacant. Thanks to swift recommendations made by Virginia Senators, both vacancies have nominees: federal prosecutor Patricia Giles; and Magistrate Judge Michael Nachmanoff. However, an additional two vacancies are scheduled to open later year, when Judges James Jones and John Gibney move to senior status. Earlier this month, Senators Mark Warner and Tim Kaine recommended U.S. Magistrate Judge Robert Ballou and Chief Federal Defender Juval Scott as prospective nominees to replace Jones on the Western District. Warner and Kaine also accepted applications to fill Gibney’s seat with a deadline of July 19, but no recommendations have been made yet.

Additional vacancies are also possible, as Judges Leonie Brinkema and Raymond Jackson on the Eastern District are eligible for senior status.

West Virginia

Despite being a small state, West Virginia is covered by two judicial districts, the Northern and Southern. Between them, the two districts have two judges appointed each by Presidents Clinton, Bush, Obama, and Trump. Of those judges, Judges Joseph Goodwin and Robert Chambers, the two Clinton appointees, and Judge John Bailey, a Bush appointee, are currently eligible for senior status. Additionally, Judge Irene Berger, an Obama appointee, joins them in eligibility next year. Given that fact, it would not be surprising if one or more vacancies opened in West Virginia before the end of the 117th Congress.

D.C. Circuit

Court of Appeals

The oft-described “second highest court in the country”, the D.C. Circuit is considered by many to be the first among equals in the federal Courts of Appeal. As currently composed, the Court has eleven active judges, four appointed by President Obama, three by President Trump, two by President Clinton, and one each by Presidents George H.W. Bush and Biden. While Biden has already named Judge Ketanji Brown Jackson to replace now-Attorney General Merrick Garland, he has a second vacancy to fill. Judge David Tatel, who has served on the court since 1994, announced in February his intent to take senior status upon the confirmation of a successor. So far, no nominee has been put forward to replace Tatel, unusual given that the D.C. Circuit does not require negotiating with home state senators before making a nomination.

Other than Tatel, two judges on the D.C. Circuit are currently eligible for senior status: Bush appointee Karen Henderson; and Clinton appointee Judith Ann Wilson Rogers. Both have been eligible for years and have declined to make the move under Presidents of both parties. While either could take senior status this Congress, it would not be surprising to see both continue to be active for a few more years.

Additionally, there is always the possibility that, if a vacancy opens on the U.S. Supreme Court, Jackson is elevated and Biden gains the opportunity to fill her seat and maintain the court’s narrow liberal majority.

District of Columbia

The U.S. District Court for the District of Columbia is the sole trial court that feeds into the D.C. Circuit. It is also a court of many firsts: the first Article III trial court to have a female judge, and the first Article III trial court to have an African American judge. Today, the 15-member court has two vacancies, both with pending nominees on the Senate floor: D.C. Superior Court Judge Florence Pan; and civil rights attorney Jia Cobb. Of the remaining judges on the court, only one, Judge Colleen Kollar-Kotelly, is eligible for senior status. Barring any moves on her part, additional vacancies are unlikely.

Federal Circuit

Court of Appeals

The Federal Circuit is the newest kid of the block in terms of federal courts, having only been created in 1982. Unlike other federal courts of appeal, which hear appeals from geographic areas, the Federal Circuit is specialized by subject matter, hearing patent cases, as well as appeals from a variety of Article I and Article III tribunals. It is also the only circuit not to see a vacancy during the Trump Administration. However, so far, only eight months into the Biden Administration, it has already seen two. The first, opened by Judge Evan Wallach’s move to senior status in May, has already been filled by Judge Tiffany Cunningham. The second will open next March when Judge Kate O’Malley, an Obama appointee like Wallach, will retire. No nominee has been named for the second vacancy so far.

There is significant potential for additional turnover on the Federal Circuit. Setting aside O’Malley, another four judges on the Circuit are eligible for senior status: Judges Pauline Newman, Alan Lourie, Timothy Dyk, and Sharon Prost. Three of the four are over eighty years old, with one, Judge Newman, being 94 (and the oldest active judge on the Federal Courts of Appeal). Furthermore, Judge Jimmie Reyna, an Obama appointee, becomes eligible for senior status next year, creating another potential vacancy. To be fair, it is unlikely that all of these seats will open. However, the last time that the Federal Circuit had so many judges poised for senior status eligibility, in the late 2000s, then President Obama named seven judges to the Court. For his part, Biden already has the opportunity to name two and will likely get at least one more vacancy before the end of the 117th Congress.

Court of International Trade

The United States Court of International Trade adjudicates civil actions arising from customs and trade laws, and its cases feed into the Federal Circuit on appeal. The Court is composed of nine judges, and, by statute, no more than five of those can be of the same political party. As a result, Presidents frequently make cross-party appointments to avoid violating this threshold. Currently, the court has four Obama appointees, three Trump appointees, and two vacancies. There are currently two-cross party judges on the court: Obama appointee Jennifer Choe-Groves; and Trump appointee Timothy Reif. Thus, Biden cannot fill both vacancies on the court with Democrats. Of the judges serving on the bench, none is close to eligibility for senior status, which makes it unlikely that additional vacancies will open on the Court in the next year.

Court of Federal Claims

After years of chronic shortages, a surge of confirmations late in the Trump Presidency brought the Court of Federal Claims down to just three vacancies by the time Biden was sworn in. Since then, a fourth vacancy has opened with Judge Lydia Griggsby’s confirmation to the District of Maryland. Of the four vacancies, two have nominees: Armando Bonilla and Carolyn Lerner. With an overwhelming majority of the court having been appointed over the last two years, no new vacancies are expected on the court after the current ons are filled.

Judge Robert Colville – Nominee to the U.S. District Court for the Western District of Pennsylvania

When the Obama Administration ended, four district court nominees in Pennsylvania were left unconfirmed before the Republican Senate.  With the nomination of Judge Robert Colville to the Western District, all four have now been renominated by President Trump.

Background

A Western Pennsylvania native, Colville was born in Pittsburgh in 1965, the son of Robert E Colville.[1]  The senior Colville was a longtime Alleghany County District Attorney and Pennsylvania Judge.  The younger Colville attended Pennsylvania State University, graduating with a B.A. in 1989.  Colville went on to get a Juris Doctor from Duquesne University School of Law.[2]

After graduating, Colville clerked for Pennsylvania Supreme Court Justice Ralph Cappy and then joined the Pittsburgh Office of Pietragallo Bosick & Gordon as an Associate.

In 2000, Colville became a judge on the Court of Common Pleas for Alleghany County.[3]   Colville continues to serve in that position today.

On July 30, 2015, President Obama nominated Colville to the U.S. District Court for the Western District of Pennsylvania to fill a vacancy opened by the death of Judge Gary Lancaster.  Colville received a hearing before the Senate Judiciary Committee but was never voted out by the Committee, where Republican Senators objected to Colville’s answers relating to Roe v. Wade and abortion rights.[4]

History of the Seat

As noted above, Colville’s nomination to the Lancaster seat on the Western District of Pennsylvania stalled in the Obama Administration.  President Trump chose not to renominate Colville to that seat, instead choosing another failed Obama nominee, Judge Marilyn Horan, who was confirmed.

Nevertheless, in August 2018, the White House reached out to Colville to vet him for a federal judgeship.[5]  Colville was nominated on March 5, 2019 for a seat that opened on January 1, 2018, with the move to senior status of Judge Arthur Schwab.

Legal Experience

From 1994 to 1999, Colville worked as an associate and a partner at Pietragallo Bosick & Gordon in Pittsburgh.  At the firm, Colville tried approximately four cases in Pennsylvania state court, focusing on general civil litigation.[6]  Among the most significant matters that Colville handled at the firm, he represented Universal Underwriters, an insurance company, in defending against a reimbursement action before the Pennsylvania Supreme Court.[7]

Jurisprudence

Colville has served as a state court judge in Alleghany County since 2000.  He spent his first two years in the Juvenile Division, the third year in the Family Division, and has been with the Civil Division since 2003.[8]  Colville has presided over around 400 civil trials.[9]

Among his more prominent cases, Colville presided over a medical malpractice case arising from the death of a patient from a perforated bowel.[10]  In another notable case, Colville presided over a $5.7 million verdict for the plaintiff in a medical malpractice case where a patient was not adequately screened for liver cancer and died as a result.[11]

Political Activity

Colville comes from a prominent Western Pennsylvania Democratic family and has only one donation of record, a $600 contribution to the Pennsylvania Democratic Party.[12]

Overall Assessment

As noted before, any nominee found worthy of nomination by two administrations of different political parties is likely to be fairly uncontroversial.  While Colville has bipartisan support, however, he is nonetheless likely to draw some opposition.  His initial nomination failed to make it out of Committee due to his (perceived) support for abortion rights, and his second nomination has already drawn Republican opposition.  None of this is to say that Colville will not be ultimately confirmed, but it does suggest that Colville will not attract the level of support that other Pennsylvania nominees have drawn.


[1] Sen. Comm. on the Judiciary, 116th Cong., Robert J. Colville: Questionnaire for Judicial Nominees 1.

[2] See id.

[3] See id. at 2.

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

[5] See Colville, supra n. 1 at 60.

[6] See Colville, supra  n. 1 at 53-54.

[7] See State Farm Mutual Auto Ins. Co. v. Universal Underwriters, 701 A.2d 1330 (Pa. 1997).

[8] See Colville, supra n. 1 at 1-2.

[9] Id. at 25.

[10] See Cunning v. Ellwood City Hospital, No. GD12-020914, Alleghany Cnty., May 14, 2015 (trial date).

[11] See Kander v. Agha, No. GD 13-007761, Alleghany Cnty., Apr. 9, 2015 (jury verdict).

Judge Chad Kenney – Nominee for the U.S. District Court for the Eastern District of Pennsylvania

A former elected Sheriff in Pennsylvania, Judge Chad Kenney comes to the federal bench with experience in law enforcement and on the state bench.

Background

A native Pennsylvanian, Chad Francis Kenney Sr. was born in Lower Merion on August 8, 1955.  He attended Villanova University, graduating cum laude in 1976 and then getting a J.D. from Temple University School of Law in 1980.[1]

After graduation, Kenney worked at Benson Zion & Associates in Haverford for a year and then joined the Superior Court of Pennsylvania as a Staff Lawyer.[2]  In 1983, Kenney joined the Law Office of Boardman and Schermer in Philadelphia.  After six years there, Kenney started his own law practice in Upper Darby.[3]

In 1992, Kenney joined O’Donnell & Kenney as a named partner.  In 1996, he left the position to become an Assistant County Solicitor in Media, Pennsylvania.[4]  In 1998, Kenney was elected to be County Sheriff for Delaware County.[5]

In 2003, Democratic Governor Ed Rendell appointed Kenney to the Delaware County Court of Common Pleas.[6]  Kenney served as President Judge of the Court from 2012 to 2017 and still serves as a Judge today.

History of the Seat

Kenney has been nominated for a seat on the U.S. District Court for the Eastern District of Pennsylvania.  This seat opened on January 11, 2016, when Judge L. Felipe Restrepo was elevated to the U.S. Court of Appeals for the Third Circuit.  While the seat opened with a year left in President Obama’s second term, no nomination was ever made to fill the seat.

After reaching out to Sen. Patrick Toomey (R-PA), Kenney interviewed for a judgeship with Toomey and his staff in February 2017.[7]  Kenney then interviewed with Sen. Bob Casey (D-PA) in April 2017 and with the White House in May.[8]  President Trump announced Kenney’s nomination to the vacancy on December 20, 2017.[9]

Jurisprudence

From 2003, Kenney has served as a Judge on the Delaware County Court of Common Pleas, which is the primary trial courts in Pennsylvania.  As a Judge, Kenney presided over cases in civil and criminal matters, as well as domestic relations, juvenile, and family law matters.  Over the last fifteen years, Kenney has presided over approximately 150 jury trials.[10]

Charter School Funding

In 2015, newly elected Democratic Governor Tom Wolf created a new funding formula for charter schools in the state, one that critics suggested was intended to shut down the schools.[11]  The new funding plan set a uniform funding rate for charter schools based on the number of students served.[12]  Based in part on the formula and seeking to resolve a budget crisis, Wolf attempted to cut the tuition payments paid by the Chester Upland School District to charter schools.[13]  However, Kenney refused to approve the cut, instead rejecting Wolf’s plan and requiring the School District to continue to fully fund charter schools.[14]

Public Defender “Punishment”

In 2013, Joseph De Ritis, a recently-terminated Delaware County public defender, filed a lawsuit naming Kenney as one of the defendants.  The lawsuit claimed that Kenney had conspired by Douglas Roger, the head of the defender’s office to fire De Ritis for not pressuring his clients to accept plea deals rather than take cases to trial.[15]  De Ritis based his claim on the hearsay statement that Kenney thought that De Ritis was not moving his cases quickly enough.[16]  Kenney was ultimately dropped from the lawsuit by Judge Cynthia Rufe in 2016.[17]

Reversals

Over his fifteen years on the bench, Kenney’s rulings have been reversed by higher courts five times.  Of these reversals, the most significant is in Commonwealth v. Goldsborough.[18]  In that case, Kenney granted a defendant’s motion to suppress all evidence from his arrest, finding that the police lacked probable cause to detain the defendant.[19]  The Pennsylvania Superior Court reversed the decision, finding that probable cause existed for the detention.[20]

Political Activity

Before he became a judge, Kenney was an elected Sheriff in Delaware County where he was supported by the Pennsylvania Republican Party.[21]  Kenney also served as Pennsylvania State Republican Committee member from 1996 and 2003.[22]  He also donated in support of Pennsylvania Senator Arlen Specter (a liberal Republican who later switched parties to become a Democrat).[23]

Overall Assessment

For the most part, close cooperation between Toomey and Casey on judicial nominations have spared Pennsylvania nominees the controversy that other states have drawn.  Toomey supported the renomination of two Obama nominees, for example, who did not receive votes in 2016.  Kenney, whose nomination was a product of this cooperation, also looks likely to receive a comfortable conformation.


[1] Sen. Comm. on the Judiciary, 115th Cong., Chad F. Kenney Jr.: Questionnaire for Judicial Nominees 1.

[2] Id. at 3.

[3] Id. at 2-3.

[4] Id.

[5] Id. at 3.

[6] Id. at 1.

[7] Id. at 43.

[8] Id.

[9] Press Release, White House, President Donald J. Trump Announces Ninth Wave of Judicial Candidates and Tenth Wave of United States Attorney Nominees (December 20, 2017) (on file at https://www.whitehouse.gov/the-press-office).  

[10] See Kenney, supra n. 1 at 20.

[11] Jan Murphy, Charter School Advocates Think Gov. Tom Wolf Is Out to Shut Their Schools Down, Penn Live, Mar. 4, 2015, http://www.pennlive.com/politics/index.ssf/2015/03/charter_school_advocates_think.html.  

[12] See id.

[13] Mari A. Schaefer and Caitlin McCabe, Judge Rejects Wolf Challenge to Charter Funding, Philadelphia Inquirer, Aug. 26, 2015.

[14] Id. 

[15] Julie Zauzmer, Ex-Delco Defender: Fired Over Lack of Plea Deals, Philadelphia Inquirer, Dec. 5, 2013.

[16] See id.

[17] Alex Rose, Judge Dropped as Defendant in Wrongful Firing Lawsuit, Delaware County Daily Times, Mar. 2, 2016, http://www.delcotimes.com/article/DC/20160302/NEWS/160309905.

[18] 31 A.3d 299 (Pa. Super. Ct. 2011).

[19] See id. at 304.

[20] Id. at 308.

[21] See Nancy Petersen, Sanchez Likely As County’s First Hispanic Judge, Philadelphia Inquirer, Nov. 5, 1997.

[22] See Kenney, supra n. 1 at 36.