WASHINGTON — If Pittsburgh attorney David Porter joins the bench of the U.S. Court of Appeals for the 3rd Circuit, it will be without the support of U.S. Sen. Bob Casey, D-Pa.
President Donald Trump nominated Mr. Porter Tuesday over the objections of Mr. Casey and progressive activists concerned about his positions on controversial issues, his ties to conservative former U.S. Sen. Rick Santorum and his affiliation with a group that fought against the 2009 confirmation of U.S. Supreme Court Justice Sonia Sotomayor.
“As a lawyer, David Porter has advocated legal theories that stack the deck against workers, deny Pennsylvanians access to health care and undermine the equal protection of our laws for all Americans,” Sen. Casey said Tuesday.
Mr. Porter’s defenders say it’s an attorney’s job to advocate the positions of their clients. Judges, they said, have a different role, and Mr. Porter knows the difference.
“He’s a lawyer in private practice who engages on the issues and has the courage of his convictions, but he has the integrity and discipline not to bring his views into a particular matter,” said Paul J. McNulty, president of Grove City College, on whose board Mr. Porter serves. Mr. McNulty, a former U.S. deputy attorney general, has known Mr. Porter since the 1990s when Mr. Porter was a young intern for the Department of Justice.
U.S. Sen. Pat Toomey, R-Pa., supports the nomination.
“Mr. Porter has the intellect, temperament, and legal experience to be an outstanding judge,” said Sen. Toomey, who called Mr. Porter one of the most preeminent attorneys in Western Pennsylvania. “Most importantly, Mr. Porter understands the proper role of a judge in America’s constitutional system is to apply the law as written to treat everyone who comes before him equally, not to impose his policy preference from the bench.”
Progressives like Kadida Kenner of Why Courts Matter’s Pennsylvania coalition say Mr. Porter is more than a lawyer with a conservative viewpoint.
“He is a right-wing ideologue,” she said. “Far from someone who would be an independent and impartial judge, David Porter has worked with and has led organizations whose legal and constitutional views are skewed against workers, equal rights, and the environment.”
Typically Sen. Casey and Sen. Toomey work together — with the help of an ad hoc committee of advisers — to recommend candidates to the federal judiciary, usually in groups of four with the senator from the president’s party picking three and the other picking one. Sen. Casey said he has previously gone along with Sen. Toomey’s picks “even when I have had concerns about the candidates’ judicial philosophies.”
This time he won’t.
“It is unfortunate that this administration has decided to nominate, over my objections, an individual who is outside the mainstream to a lifetime appointment to one of the most important courts in the nation,” Sen. Casey said.
Traditionally, the Senate has had a safeguard to prevent the confirmation of nominees who lack the support of both of their home-state senators: the judiciary committee schedules no confirmation hearings without sign-offs known as “blue slips” from both state senators. But Senate Judiciary Chairman Chuck Grassley, R-Iowa, has been willing to put aside the “blue slip” tradition since Mr. Trump’s election.
Sen. Grassley held hearings anyway for Michael B. Brennan and David Stras, nominees to the seventh and eighth circuit courts, respectively, when U.S. Sen. Tammy Baldwin, D-Wisc., and former U.S. Sen. Al Franken, D-Minn., withheld their blue slips.
Judge Stras was confirmed, and Mr. Brennan awaits a vote.
If Mr. Porter gets a hearing without Mr. Casey’s support, it would be a first in modern history for a Pennsylvania nominee.
Mr. Porter is a shareholder in the Pittsburgh office of Buchanan Ingersoll & Rooney, where he has practiced law for 23 years. He specializes in complex commercial and constitutional litigation and regulatory matters. He previously served as law clerk to D. Brooks Smith, then a judge for the Western District of Pennsylvania, who now is chief judge of the 3rd Circuit.
The 3rd Circuit hears cases on appeal from Pennsylvania, New Jersey, Delaware and the Virgin Islands.
Washington Bureau Chief Tracie Mauriello: tmauriello@post-gazette.com; 703-996-9292 or on Twitter @pgPoliTweets.
First Published: April 10, 2018, 6:19 p.m.
