Bloomberg Law
May 8, 2019, 3:12 PMUpdated: May 8, 2019, 9:00 PM

Trump Closer to ‘Flipping’ N.Y.-Based Appeals Court (1)

Patrick L. Gregory
Patrick L. Gregory

President Donald Trump is in striking range of flipping another federal appeals court to a majority of Republican-appointed judges, this one based in his home state of New York.

The Senate on Wednesday confirmed Joseph Bianco to the U.S. Court of Appeals for the Second Circuit, in a 54 to 42 vote that included some Democratic support. A second appointment to that court, Consovoy McCarthy Park partner Michael Park, is expected to be confirmed this week after the chamber voted to end debate on his nomination.

When Trump makes additional appointments for vacancies that will be left by two judges who recently announced their retirements, Dennis Jacobs and Christopher Droney, the 13-member court will be majority Republican-appointed.

Based in the nation’s financial capital, the Second Circuit has been called the “Mother Court” of securities law and has been the center of high-profile cases including the NFL’s “Deflategate” controversy.

And with Special Counsel Robert Mueller’s Russia probe complete, the focus of Trump-related investigations now shifts to New York where his former lawyer, Michael Cohen, was convicted in federal court of campaign finance and other crimes. Cohen began a three-year prison term this week.

Trump flipped the Pennsylvania-based Third Circuit earlier this year to majority Republican appointees, and has appointed more than 100 judges overall since taking office in 2017. Although a majority of appointments by a president of one party or another doesn’t guarantee case outcomes, Trump has vowed to appoint conservative judges in the mold of the late Supreme Court Justice Antonin Scalia, a proponent of originalism and textualism.

Still, the appointing party is the “best metric we have in a simplified sense,” of how judges might vote, Russell R. Wheeler, a professor at American University law school, and a visiting fellow at the Brookings Institution who focuses on U.S. judicial systems, said.

The president doesn’t have to wait until the next two soon-to-be-open Second Circuit seats are empty to nominate replacements, and it’s not clear who he’s thinking about to fill those spots. The court handles cases in New York, Connecticut and Vermont.

For the seats up for votes this week, Trump is staying on script. In Bianco, he’s selected a district court judge and former organized crime and terror prosecutor. Park is a partner with Consovoy McCarthy Park. Both are members of the Federalist Society, a legal network of conservatives and libertarians.

They are opposed by many Democrats, including New York’s two senators, minority leader Chuck Schumer and 2020 presidential candidate Sen. Kirsten Gillibrand despite the fact that both nominees earned the highest rating of “Well Qualified” from the American Bar Association.

Schumer and then-Sen. Hillary Clinton supported Bianco’s district court confirmation in 2005. “I am proud to support someone as outstandingly qualified and well respected as Mr. Bianco,” Schumer said then.

Republicans have been allowing the confirmation of appeals court nominees despite the objection of home-state senators, in a change from Senate practice during the Obama administration.

As for Park, Schumer said the nominee “has spent much of his career working in opposition to civil rights and seeking to advance the far-right agenda” on issues like affirmative action, health care, and the pending legal dispute over the inclusion of a citizenship question on the 2020 census.

Park clerked for conservative Supreme Court Justice Samuel A. Alito Jr., both at the high court and when Alito was on the Third Circuit.

He’s an adjunct professor at George Mason University’s Antonin Scalia Law School, which has received millions from conservative activist Charles Koch.

(Updates with Park cloture vote in paragraph 2.)

To contact the reporter on this story: Patrick L. Gregory in Washington at

To contact the editors responsible for this story: John Crawley at; Jessie Kokrda Kamens at