New Vacancy on 3rd Circuit Court May Tilt Balance of Judges, Impacting Religious Freedom

December 17, 2021
Fli Insider | Judiciary Vacancies

by Liberty McArtor • 3 min read

A judge on the Third U.S. Circuit Court of Appeals is stepping down, creating an opportunity for President Joe Biden to change the balance of the Court.

Brooks Smith, a nominee of President George W. Bush, served as the Third Circuit’s chief judge until recently when he transitioned into “senior status”—a quasi-retirement which means he will no longer be ruling from the bench.

Previously, the balance of judges on the Philadelphia-based Circuit was 8-6 in favor of a more originalist judicial philosophy. With the new vacancy making room for a Biden-nominee, the Court will likely shift to a 7-7 split between originalist judges and activist judges.

Such dynamics could impact future rulings from the Third Circuit—including a pending First Liberty case. 

Fli Insider Ipad Banner | Red Flag Nominees

An Opportunity to Defend Religious Employees

First Liberty is representing Gerald Groff, a U.S. Postal Service worker who was denied a religious accommodation in response to the federal vaccine mandate. Ultimately, he lost his job as a postal worker. We could be arguing his case at the Third Circuit as soon as next month—and a win at the federal appeals court level could set an important precedent protecting religious employees from workplace discrimination.

Since federal appeals courts typically hear cases in three-judge panels, a greater number of conservative judges—judges who interpret the Constitution as written—means a greater chance of victory in matters of religious freedom.

The Third Circuit Appeals Court has not yet decided which judges will hear our case, so it remains to be seen whether Judge Smith’s effective retirement and Biden’s potential replacement will affect the outcome.

The Power Presidents Wield

With their responsibility to appoint federal judges, presidential influence in federal court dynamics is powerful. As it happens, Biden has nominated 28 federal judges his first year in office (all confirmed by the Senate). That ties him with President Bill Clinton for the second-most nominees confirmed at this point in a president’s first year since 1901. President John F. Kennedy had the most, with 56 federal judges by December 1 of his first year in the White House.

Biden’s appointments up to this point have already “flipped” two appellate courts to a liberal majority—though there are still more conservative federal judges currently serving nationwide than liberal judges.

America is a long way off from having a liberal majority on the federal courts—but every change in the judiciary inches America closer to this reality. That’s why First Liberty is committed to staying on top of judicial nominations—so you can be informed on the state of our nation’s courts and their impact on religious freedom in America.

Fl Insider 10 01 Award Winning Newsletter Banner

Social Facebook Social Instagram Twitter X Icon | First Liberty Institute Social Youtube Social Linkedin

Terms of UsePrivacy PolicyState DisclosuresSitemap • © 2024 Liberty Institute® is a trademark of First Liberty Institute