Peter Phipps
United States Court of Appeals for the Third Circuit
Prior to his confirmation, Peter Phipps served in a variety of roles at the Department of Justice. During his time there, he fought against reproductive rights and LGBTQ equality. He also represented the U. S. Department of Housing and Urban Development in the landmark case Thompson v. United States HUD, in which the court held HUD violated the Fair Housing Act through its practice of what the Legal Defense Fund described as “unfairly concentrating African-American public housing residents in the most impoverished, segregated areas of Baltimore City.” Since his appointment to the Third Circuit, Phipps has continued to uphold Trump Administration principles. He dissented from a panel decision that held that public-sector unions do not have to pay back fees collected from nonmembers before the Supreme Court overturned a 40-year precedent in Janus v. AFSCME. The majority, consistent with every other court that has ruled on the issue, held that the union relied in “good faith” on the longstanding Supreme Court precedent.
After being confirmed to the Third Circuit, Phipps in Diamond v. Pennsylvania State Education Association dissented from a panel decision that held that public-sector unions do not have to pay back fees collected from nonmembers before the Supreme Court overturned a 40 year precedent in Janus v. AFSCME. The majority, consistent with every other court that had ruled on the issue, held that the union relied in “good faith” on the longstanding Supreme Court precedent. He also dissented from a ruling that Pittsburgh police officers should not be granted qualified immunity for body-slamming and tasing a pair of teenaged brothers who they (wrongly) suspected of possessing synthetic marijuana.
The Alliance for Justice strongly opposes the consideration of Peter Phipps for a seat on the U.S. Supreme Court.
On May 3,
2019, President Trump announced his intent to nominate Peter Phipps to the Third Circuit Court
of Appeals for the seat previously held by Judge Thomas Vanaskie. Just last year, Phipps was nominated and confirmed to be a United States
District Court Judge in the Western District of Pennsylvania, filling the seat
of retired Judge Terrence F. McVerry. Since that time, AFJ has reviewed
Phipps’s short record as a District Court judge and found Phipps has authored
only eight opinions.
This is Trump’s fourth
nominee to the Third Circuit since taking office, and all four of those
nominees have been white men. In contrast, President Obama nominated Rebecca Ross Haywood to the Third Circuit in March 2016 and Haywood would have been the first
African American woman to serve on the Third Circuit. However, her nomination
was blocked because Senator Pat Toomey never returned his blue slip. In response, the Senate
Judiciary Committee – respecting the blue slip tradition at that time – did not
consider Haywood’s nomination.
As was the case
with the nominations of Paul Matey
and David Porter to the Third Circuit, there was no
meaningful consultation with at least one home-state senator on Phipps’s
nomination.
In a press
statement, Senator Bob Casey stated that he did not believe Phipps’s “six months on that bench
is sufficient experience or preparation.” Moreover, Senator Casey emphasized
how, “[l]ike justices of the Supreme Court, circuit court judges are often
asked to decide questions of law that can have an enormous impact on Americans’
lives, and I have significant concerns about Judge Phipps’ judicial and
constitutional philosophy.” As a result, Senator Casey will not return his blue
slip for Phipps’s nomination.
In addition,
during his initial confirmation hearing for the district court, Phipps joined
many of Trump’s nominees in his refusal to answer whether he believed Brown v. Board of Education was
correctly decided.
Due to the lack
of meaningful consultation with home-state senators and Phipps’s short tenure
as a district court judge, Alliance for Justice opposes Phipps’s nomination.
Biography
Phipps is
currently serving as a district court judge in the Western District of
Pennsylvania. President Trump nominated Phipps for the seat on February 15,
2018 and he was confirmed on October 11, 2018; thus, he has served as a judge
for less than one year.
Prior to his
confirmation as a district court judge, Phipps held a variety of roles at the
Department of Justice (DOJ) including as senior trial counsel from 2011-2018,
senior counsel from 2009-2011, and trial attorney from 2003-2009.
Phipps was a law clerk to Judge R. Guy Cole, Jr. of the Sixth Circuit Court of Appeals before working at the DOJ. Prior to his clerkship, Phipps worked as an associate at Jones Day from 1998-2001.
He received his
J.D. from Stanford Law School in 1998. He also received his B.S. in Physics and
B.A. in History from the University of Dayton in 1995. Phipps is 46 years old.
The following
sections highlight notable cases that Phipps worked on as an attorney for the DOJ.
The Senate should note the various issues they raise and question Phipps on his
role in these cases.
Reproductive Rights
In October 2018,
Phipps was the lead attorney for the DOJ in ACLU
v. Azar, 2018 U.S.
Dist. LEXIS 175470. Phipps
defended a Health and Human Services policy to provide grants to religious
institutions that care for unaccompanied immigrant children and victims of
human trafficking, even though these organizations had “religious objection[s]
to providing access to abortion or contraception.”
LGBTQ Rights
Phipps defended
the discharge of a nurse from the United States Air Force under the “Don’t Ask,
Don’t Tell” policy in Witt
v. Department of the Air Force,
444
F. Supp. 2d 1138 (W.D. Wa. 2006).
The ACLU
represented the plaintiff, Major Margaret Witt. Maj. Witt was a decorated flight and operation nurse, and had served
in the Air Force for almost twenty years. The ACLU noted how Witt “was
discharged from the U.S. Air Force on the grounds that she engaged in
homosexual conduct” and that doing so violated Maj. Witt’s Fifth and First Amendment
rights.
Phipps’s examination
of Witt during trial focused on her moral standards. For instance, he asked her – regarding her relationship with a married civilian
woman – if she believed adultery was “not consistent with a high standard of
conduct.” Phipps “insisted during his opening statement that [the
nurse’s] conduct necessitated her firing.”
Further,
Phipps argued her “discharge therefore eliminated a risk to unit cohesion and
morale.” Following President Obama’s repeal of “Don’t Ask,
Don’t Tell,” Witt’s case was settled in 2011 and she was able to retire from
the Air Force with full benefits.
Housing Discrimination
Phipps
represented the U. S. Department of Housing and Urban Development (HUD) in the
landmark case Thompson
v. United States HUD,
348 F. Supp. 2d 398 (D Md. 2005), in which the court held HUD violated the Fair
Housing Act through its practice of what the Legal Defense Fund described as “unfairly concentrating African-American public housing
residents in the most impoverished, segregated areas of Baltimore City.”
In 2005, the
United States District Court of Maryland found that “HUD failed to consider regionally-oriented
desegregation and integration policies, despite the fact that Baltimore City is
contiguous to, and linked by public transportation and roads to, Baltimore and
Anne Arundel Counties and in close proximity to the other counties in the
Baltimore Region.” Moreover, the court found that by “effectively wearing
blinders,” HUD “at best, abused their discretion and failed to meet their
obligations under the Fair Housing Act to promote fair housing
affirmatively.”
The court
found that the plaintiffs were entitled to seek remedial measures for the harms
caused by HUD’s policies. The decision expressed frustration with HUD’s
unwillingness to confront past practices, as the court explained it was “no
longer appropriate for HUD, as an institution with national jurisdiction,
essentially to limit its consideration of desegregative programs for the
Baltimore Region to methods of rearranging Baltimore’s public housing residents
within the Baltimore City limits.”
Conclusion
As of this writing, a home-state senator opposes Phipps’s nomination to the Third Circuit. Consistent with Senate practice for nearly a century, the Judiciary Committee should not proceed with a hearing. Moreover, Phipps’s brief tenure as a district court judge and his record raise serious concerns. Alliance for Justice opposes the nomination of Peter Phipps to the Third Circuit.