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Trump Poised to Flip Appeals Court for First Time (4)

March 11, 2019, 5:49 PMUpdated: March 11, 2019, 10:18 PM

A federal appeals court is poised for the first time under Donald Trump to “flip” to a majority of Republican appointees, a big step in the drive by the president and his Senate allies to remake the judiciary with conservatives.

The milestone is expected as early as Tuesday with the likely confirmation of Paul Matey to the U.S. Court of Appeals for the Third Circuit. The Senate on Monday night advanced his nomination to a final vote, 50 to 44.

The Lowenstein Sandler partner and former hospital executive was at one-time top a legal aide to Chris Christie while he was New Jersey governor.

Republicans have made transforming the judiciary with conservatives a top policy and political priority. Trump has fortified the conservative U.S. Supreme Court majority with two appointments, and Matey would be the 35th circuit nominee confirmed under his watch.

The GOP judicial march continues this week after Matey when the chamber will take up the nomination of top Trump regulatory official Neomi Rao to replace Supreme Court Justice Brett Kavanaugh on the D.C. Circuit. Her confirmation also is expected.

Trump and Senate Republicans have pushed a stable of younger nominees. Matey and Rao are both in their mid-40s and have no judicial experience, like a number of others ascending to the circuit court level under Trump.

Matey, however, is a former prosecutor and Third Circuit clerk. Rao’s a former Fourth Circuit and Supreme Court clerk, having worked for Justice Clarence Thomas.

The Third Circuit, which is likely to maintain its centrist reputation for now, is known for high-profile multidistrict litigation including the NFL concussion and asbestos cases, appellate attorney Howard Bashman of Willow Grove, Pa., said.

Trump previously appointed Stephanos Bibas and David Porter to the 14-seat Philadelphia-based circuit that hears cases from Pennsylvania, New Jersey, Delaware and the Virgin Islands. Trump will still have room to fill a fourth seat.

Trump’s sister, Maryanne Trump Barry, is a retired Third Circuit judge, and Trump Supreme Court shortlister Thomas Hardiman is an active member.

Christie Connection

Democrats oppose Matey, specifically calling out his ties to Christie. They questioned him at his confirmation hearing about a variety of scandals surrounding the former Republican governor, including a controversial no-bid contract awarded for Hurricane Sandy cleanup.

Matey acknowledged that he provided counsel to Christie about the contract, but he declined to provide more details, citing attorney-client privilege.

He also denied any involvement in the “Bridgegate” scandal in which two Christie allies were convicted of conspiracy and fraud in connection with political retaliation against a mayor who refused to endorse Christie for re-election.

After leaving state government, Matey was senior vice president and general counsel at University Hospital in Newark from 2015-18.

Matey would be another Trump nominee confirmed without the support of both home-state senators, a newly developing trend that currently exposes the inability of Democrats in most cases to stop judicial nominations as the Senate’s minority party.

Matey clerked for Third Circuit Judge Robert Cowen and for Judge John C. Lifland of the U.S. District Court for the District of New Jersey. He’s also a former assistant U.S. attorney for the same district.

The American Bar Association’s Standing Committee on the Federal Judiciary rated Matey as “Qualified,” which is lower than its highest rating of “Well Qualified.” A minority of the committee’s members rated Matey as “Not Qualified.”

Matey is a member of the Federalist Society, an organization of conservatives and libertarians that has helped the Trump administration select judicial nominees.

As an associate at Kellogg, Hansen, Todd, Figel & Frederick, Washington, Matey co-authored a working paper with then-partner and now-U.S. Supreme Court Justice Neil M. Gorsuch, about how to improve the rules governing securities class actions.

To contact the reporter on this story: Patrick L. Gregory in Washington at pgregory@bloomberglaw.com

To contact the editors responsible for this story: John Crawley at jcrawley@bloomberglaw.com; Jessie Kokrda Kamens at jkamens@bloomberglaw.com