How are Trump appointees are shaping Philly’s 3rd Circuit Court? | Monday Morning Coffee

The appellate court’s rulings haven’t ‘dramatically’ changed, but there have been noticeable differences, according to a published report

January 17, 2022 7:05 am

(Image AdobeStock via The Philadelphia Gay News)

Good Monday Morning, Fellow Seekers.

When he took office five years ago last January, former President Donald Trump promised to reshape the federal judiciary and make it more conservative.

In that, despite four years of controversy and pandemic, he was successful. The Republican left office having appointed more than 200 judges to the federal bench, including the powerful federal appellate courts.

While the 226 judges Trump appointed during his single term was well behind the tally appointed by prior two-term presidents, Trump appointed 54 federal appellate judges in four years. That’s one short of the 55 his predecessor, Democrat Barack Obama appointed in his eight years in the White House, according to the Pew Research Center.

One such appellate bench impacted by that appointment spree was the Philadelphia-based 3rd Circuit U.S. Court of Appeals, where four, Trump-appointed judges now sit.

While the rulings from that federal bench haven’t “dramatically” changed with that influx of new judges, there have been noticeable changes “on the margins” with their presence, according to The Legal Intelligencer, an industry trade newspaper. The story first appeared in the New Jersey Law Journal.

Here are the two big takeaways from the Legal Intelligencer’s story, which was published late last week:

  • “The Trump appointees have split from their colleagues on a small number of cases, but polarizing subjects such as reproductive rights aren’t often heard at the Third Circuit,” and
  • “Collegiality among Third Circuit judges has helped the court avoid partisan bickering that has been seen in some other courts of appeals.”

“I would contrast it to the Ninth Circuit, where there are a lot of Trump appointees who have issued a lot of curious opinions, or the Sixth Circuit, where there’s been a lot of contentious, intra-panel and intra-court rulings where people are writing on the record back-and-forth at each other, in ways that are sort of personal and not anything that would happen in the Third Circuit,” Philadelphia lawyer James Davy, who’s had a dozen cases before the federal appellate court over the last two years, told the newspaper.

The Third Circuit was among the Trump-appointed benches that dealt the former president legal defeats as he unsuccessfully tried to topple the results of the 2020 election, the trade newspaper noted.

In a tersely written opinion, Judge Stephanos Bibas, a Trump appointee, batted aside a challenge, ruling that, “calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here.”

The court split, meanwhile, along predictably partisan lines in a challenge to a New Jersey law banning guns with large-capacity magazines.

“I think there are certain types of cases that bring out that divide. Gun cases are one of them. The vast majority of cases don’t present ideological issues, they present questions of law, not like the Supreme Court, where many cases have political controversies underlying them,” New Jersey appellate lawyer Lawrence Lustberg told the newspaper.

President Joe Biden talks on the phone with Senator Rob Portman (R-Ohio) following the Senate vote to pass the $1.2 trillion infrastructure bill, Aug. 10, 2021, in the Oval Office Dining Room of the White House. (Adam Schultz/Official White House Photo)

As the trade newspaper reports, President Joe Biden will have the opportunity to pick three new judges for the Third Circuit, potentially flipping it back to a Democratic majority.

That’s because Judge D. Brooks Smith, a George W. Bush appointee, who had been the court’s chief judge, took senior status in late 2021. Two more judges, Theodore McKee, and Thomas Ambro, both appointed by President Bill Clinton, also are expected to take senior status this year, the newspaper reported.

While Biden’s domestic agenda has stumbled on Capitol Hill, the Democratic White House has been scoring wins with its judicial appointments. The White House has so far won confirmation for 40 judges, the most at a similar point in a president’s first term since President Ronald Reagan, the Economist reported. It’s also double the mark that Trump set in his first year, the magazine reported.

As The Washington Post’s Paul Waldman notes, Biden and U.S. Senate Democrats have taken some heat for changing the confirmation process, scrapping the so-called “blue slip,” which allowed one senator to derail a nominee from his or her home state.  But as Waldman also notes, Republicans did the same thing when they had the majority, rendering GOP objections largely hollow.

Back in Philadelphia, one legal scholar noted that partisan divisions on a court often can be overcome by the personal and professional relationships among the judges.

“I think the judges are very collegial towards one another. That probably makes for a more pleasant working environment and also is helpful in decision-making across the court,” Carl Tobias, of the University of Richmond School of Law, told the New Jersey Law Journal.

Pennsylvania State Capitol Building. (Capital-Star photo by Cassie Miller.)

Our Stuff.
It’s Martin Luther King Jr. Day in Pennsylvania and the rest of the nation. We have you covered with a pair of stories:

In this week’s edition of The Numbers RacketCassie Miller runs down all the ways that Americans are volunteering across the nation. Also from Miller, a list of all the volunteer opportunities available across the commonwealth on this national day of service.

In a must-read, Stephen Caruso takes an in-depth look at the debate over drawing legislative district lines that ensure Pennsylvania’s growing Black, Asian and Latino populations are represented in the state Capitol.

Allentown Police are in line to undergo active bystander trainingCorrespondent Katherine Reinhard explains what that is — and why it matters.

A government watchdog organization is the latest group to sue Fulton County over information related to an off-the-books 2020 election review and has asked a court to order the release of all information requested as part of an open records request, Marley Parish reports.

A new poll by the Trevor Project shows that over two-thirds of LGBTQ+ youth say their mental health has been negatively impacted by the Republican-led efforts to curtail the rights of trans and non-binary people, our partners at the Philadelphia Gay News report.

En la Estrella-Capital: La nueva ley federal ayudará a proteger a los residentes de Pa. en contra de facturas médicas sorpresa, dice la administración de Wolf. Y Biden envía equipos médicos a 6 estados y promete más pruebas y mascarillas de COVID gratuitas.

On our Commentary Page this morning: NPR showed us the best way to interview a totalitarian liar, opinion regular Dick Polman writes. And incarceration should not obliterate civic engagement – or inflate long-standing imbalances of power, Robert Saleem Holbrook, of the Abolitionist Law Center, writes.

(c) Mariakray –

WHYY-FM runs down the travel and vehicle restrictions that PennDOT has announced as a result of Sunday’s storm. And WITF-FM runs down the storm’s impact across central Pennsylvania.

And in NWPA, home delivery of the Erie Times-News was impacted by the stormGoErie reports.

The Washington Post takes a look at some of the challenges facing the Jan. 6 Committee as it tries to secure testimony from U.S. Rep. Scott Perry, R-10th District, and other Trump loyalists.

The Inquirer runs down President Joe Biden’s visit to Philadelphia on Sunday.

Is Wilkinsburg Pittsburgh’s ’91st neighborhood,’ or a neighboring community? The Post-Gazette explains.

From assaults on voting rights to racial justice, PennLive looks at attacks on the Rev. Dr. Martin Luther King’s legacy, and how advocates are looking to reinvigorate it.

The Morning Call takes a look at how some people continue to take King’s words out of context, and explains what they really mean.

A new manufacturing facility will bring more than 100 new jobs to York County over the next three years, the York Daily Record reports.

Many bereaved families in Luzerne County aren’t applying for the COVID-19 funeral benefits for which they’re eligible, the Citizens’ Voice reports.

Here’s your #MLKDay Instagram of the Day:


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What Goes On
State government is closed for the Martin Luther King Day holiday. And Gov. Tom Wolf has no public schedule today.

You Say It’s Your Birthday Dept.
Best wishes go out to reader Ewa Swope, who celebrates today. Congratulations and enjoy the day.

Heavy Rotation
Here’s one from Winnetka Bowling League to get your snowy Monday morning rolling. It’s a remix of ‘Congratulations.’

Monday’s Gratuitous Hockey Link
Vancouver snapped a three-game losing streak, beating the Washington Capitals 4-2 on Sunday. The Canucks’ Elias Pettersson scored twice on the way to the win.

And now you’re up to date.

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John L. Micek

A three-decade veteran of the news business, John L. Micek is the Pennsylvania Capital-Star's former Editor-in-Chief.