Senate confirms second circuit court nominee without approval from home-state senators

On March 12, the U.S. Senate confirmed Paul Matey to the U.S. Court of Appeals for the 3rd Circuit on a vote of 54-45. President Trump nominated Matey to the court on April 12, 2018. Sen. Joe Manchin (D-W.V. ) was the only Democratic senator to vote in favor of the confirmation.

Matey will join the court upon receiving his judicial commission and taking his judicial oath. Once he joins the court, Matey’s confirmation will result in a 7-6 Republican-appointed majority on the 3rd Circuit. Before Matey’s confirmation, the court had six judges appointed by Democratic presidents, six judges appointed by Republican presidents, and two vacant seats.

As of March 2019, no other circuit courts would change partisan balance based on an appointing president’s party, but Trump’s nominees could impact two courts by nearing the number of Republican-appointed judges to the number of Democratic-approved judges. The U.S. Court of Appeals for the 2nd Circuit, which has two current vacancies and two pending nominations, currently has a 7-4 Democratic-appointed majority. Should the Senate confirm the two nominees, the court’s balance would shift to a 7-6 Democratic-appointed majority. Similarly, the U.S. Court of Appeals for the 9th Circuit has five vacancies and five pending nominations. The court has a 16-8 Democratic-appointed majority.

Matey was the second circuit court judge confirmed without blue slip approval from home-state senators. Eric Miller was the first circuit court judge confirmed without support from both home-state senators. A blue slip is a piece of paper a home-state senator returns to the Senate Judiciary Committee chair to express support for a federal judicial nominee. Judiciary Committee Chairman Lindsey Graham (R-S.C.) decided not to require blue slip approval for federal judicial nominees to the U.S. circuit courts of appeals.

Home-state Sens. Cory Booker and Bob Menendez, both Democrats representing New Jersey, said the White House did not consult them before nominating Matey. Booker, who is a member of the Senate Judiciary Committee, said the confirmation without blue slip approval “goes right to the ability of any senator in this body to truly represent their state.” Menendez expressed concern for Matey’s record and his role in the administration of New Jersey Governor Chris Christie (R).

Senate Judiciary Committee Chairman Lindsey Graham (R-S.C.) said Democrats were responsible for changing the blue slip process, referring to changes Democratic senators introduced in 2013. “The day that you dealt yourself out as a minority to have a say about who gets on the court was the day that everything changed,” he said. He also stated that senators from one state should not be able to block circuit court nominees, since circuit courts serve multiple states.