On April 12, 2018, President Trump nominated David J. Porter to the United States Court of Appeals for the Third Circuit. Porter was nominated to replace Judge Michael Fischer, who assumed senior status on February 1, 2017. Notably, one of Pennsylvania’s U.S. senators, Sen. Bob Casey, has chosen to withhold his blue slip on Porter’s nomination. Alliance for Justice strongly opposes Porter’s confirmation on grounds related both to the process surrounding his nomination and to the merits of his record.
A brief history of events surrounding another recent nomination to the Third Circuit is relevant here. In March of 2016, Pennsylvania’s other U.S. senator, Sen. Pat Toomey, announced he would not return his blue slip on President Obama’s nomination of Rebecca Haywood to the Third Circuit Court of Appeals, stating, “The Administration knows that I have concerns about the nomination of Ms. Haywood to serve on the Third Circuit.” He added, “Instead of blowing up a bipartisan working arrangement for judicial nominees that has done so much good for Pennsylvania,” the president should “instead work across the aisle with Senator Casey and me to arrive at a consensus nominee as we have for every other vacancy since 2011.”
At the time, Judiciary Committee Chairman Chuck Grassley respected Toomey’s decision not to support Haywood’s nomination. Grassley did not schedule a hearing, nor did Haywood receive a committee vote. (If she had been confirmed, Haywood, chief of the Appeals Division in the U.S. Attorney’s Office in the Western District of Pennsylvania and rated well qualified by the ABA, would have been the first African-American woman on the Third Circuit.)
Now, just two years later, the contrast between Grassley’s approach to Haywood’s nomination and his approach to Porter’s could not be more stark. Casey is attempting to exercise the same right exercised by Toomey in withholding a blue slip on a judicial nominee. Chairman Grassley is refusing to honor Casey’s right, and has found an ostensible new reason for doing so: “the blue slip isn’t supposed to allow the unilateral veto of a nominee.”
What makes this action even more striking is that Grassley has continued to espouse the value of the blue slip while not respecting it in practice. Publicly, he has continued to maintain that “[t]he blue slip serves the important purpose of encouraging consultation between the White House and the Senate. The White House has an obligation to engage in good-faith consultation with home-state senators. I won’t allow the White House to just steamroll home-state senators.”
Such statements stand in contradiction to the reality that Grassley is enabling the White House to run roughshod over Casey’s rights with regard to the Porter nomination. Porter’s nomination was fast-tracked from the start without consultation with Casey; the White House decided to nominate Porter to the Third Circuit just four months after he first expressed interest in the position.
Since then, by Porter’s own admission, he has had no interactions with Casey. Also, Casey had made clear prior to this nomination that he was willing to work with the White House to find consensus on nominees other than Porter; in fact, Casey returned his blue slip on Stephanos Bibas even though he opposed Bibas’s confirmation, and he has supported Trump’s nominees to the district courts in Pennsylvania.
The disrespect shown to Casey throughout the nomination process is deeply troubling and on its own could merit the withholding of a blue slip. But Casey’s decision to withhold support is in fact based on his assessment of Porter’s record.
Porter’s career has been marked by fidelity to highly ideological and partisan missions. He is affiliated with several ultraconservative groups, including the Federalist Society. He has a close relationship and is philosophically aligned with Leonard Leo, the president of the Federalist Society, as he made clear when he thanked Leo for his comments on a book review Porter wrote on Ourselves and Our Prosperity: Essays in Constitutional Originalism. Disturbingly, Porter is a contributor to the Center for Vision & Values, a conservative think tank that has advocated against LGBTQ rights and argued that the minimum wage is unconstitutional. With former Senator Rick Santorum, he founded the Pennsylvania Judicial Network, an organization which opposed the nomination of U.S. Supreme Court Justice Sonia Sotomayor.
In addition, Porter has vocally opposed the legality of the Affordable Care Act. In a 2012 article for the Center for Vision & Values, Porter reviewed landmark Supreme Court decisions that upheld the National Labor Relations Act, the Fair Labor Standards Act and federal civil rights laws, and said that if the Supreme Court were to uphold the ACA under the Commerce Clause, it would “further stretch” and “break the Framers’ structural design[.]” In the same article, Porter praised the Supreme Court’s ruling in United States v. Morrison, which struck down part of the Violence Against Women Act.
As Pennsylvanians are well aware, Porter’s many affiliations and statements are clear signifiers of a philosophy that is hostile to the civil and human rights progress of recent decades. His record has generated intense home-state opposition to his candidacy for a federal judgeship, both now and when the possibility has arisen in the past. This opposition is well-documented and should be taken very seriously by senators charged with evaluating this nominee.
Finally, we note that Grassley’s shabby treatment of Casey with regard to the Porter nomination follows egregiously disrespectful treatment of Senators Tammy Baldwin, Ron Wyden and Jeff Merkley when they withheld blue slips on judicial nominees, and heightens our concern that the judicial nominations process is being irreparably damaged by the actions of the Chairman.