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Third Circuit Vacancy Gives Biden Chance to Shift Court Balance

Dec. 7, 2021, 8:05 PM

A vacancy on the Philadelphia-based circuit court gives Joe Biden an opportunity to evenly split membership of that bench between appointees of Republican and Democratic presidents.

Judge D. Brooks Smith of the U.S. Court of Appeals for the Third Circuit took a form of semi-retirement known as senior status on Dec. 4, deputy circuit executive Joel McHugh said. Smith, who recently ended his tenure as chief judge of the court, is an appointee of George W. Bush, a Republican.

The announcement opens the door for Biden, a Democrat, to name Smith’s successor and even the balance of the court between appointees of GOP and Democratic appointees at 7-7.

The party of an appointing president isn’t an exact measure of judicial philosophy, but it’s often used as an indication of how a circuit court leans. The composition of a court can be important in en banc cases before the full court.

During his tenure, President Donald Trump and the GOP-led Senate focused on appeals courts and at one point filled all circuit vacancies. Those efforts resulted in Trump “flipping” three circuit courts—the Second, Third, and Eleventh—from a Democratic-appointee majority to a Republican-appointee majority and deepening the Republican lean on others.

Biden and the now Democratic-controlled Senate have had relatively few opportunities to make such an impact in his first year in office.

Biden flipped the Second Circuit in November when he filled a vacancy created by George W. Bush appointee Peter Hall, but so far, most of his available circuit vacancies have been Democratic appointees. Of the 27 circuit seats that Biden has either filled or has available to fill, just four were previously held by Republican appointees, including Smith.

Smith has served on the Third Circuit since 2002 and was previously a trial court judge in the U.S. District Court for the Western District of Pennsylvania. Smith served as chief judge of the circuit since 2016.

As a senior judge, Smith will relinquish his responsibilities as an active judge and may take on a lighter case load. But he’s picking up new responsibility elsewhere. Starting in January 2022, Smith will be the “Jurist in Residence” at Penn State Law, where he already teaches and serves on the school’s board.

To contact the reporter on this story: Madison Alder in Washington at

To contact the editors responsible for this story: Seth Stern at; John Crawley at