The Case for Moving a Circuit Judgeship from Delaware

President Trump has an immediate opportunity to flip the ideological composition of a federal appellate court. The U.S. Court of Appeals for the Third Circuit—which includes Pennsylvania, New Jersey, Delaware, and the U.S. Virgin Islands—has two vacancies. One of them replaces conservative judge Kent Jordan, who sat in Delaware, and the other replaces liberal Joseph Greenway, who sat in New Jersey. Once those replacements are made, the court will have eight Republican-appointed judges to six Democrat-appointed judges. To maximize this opportunity, President Trump should move the Jordan seat from Delaware to either Pennsylvania or New Jersey.

Flipping the Third Circuit fully and effectively is important. From a policy perspective, it hears an outsized number of immigration cases and important business cases. As the state government in New Jersey also shifts left—following the continued implosion of the state’s corrupt but transactional Democratic machine—it will increasingly become a testing ground for the constitutionality of radical-progressive state policies. 

The Third Circuit also matters from a purely political standpoint. With Pennsylvania having established itself as the marquee electoral battleground, a circuit majority committed to sound election law will be critical. Furthermore, Trump’s Bedminster, New Jersey, golf club—which, during the last Trump administration, frequently served as a summer White House—gives the president a personal interest in the circuit. All this would be best served by putting well-qualified, known conservatives in both seats.

The Process of Moving Seats

Under federal law, every state in a court of appeals needs at least one judge assigned to it. Delaware has that in Judge Tamika Montgomery-Reeves (a Biden appointee). Which means that under the law it’s not entitled to another seat, even though it currently has one.

Beyond the requirement that each state have at least one, where circuit judges sit is, as much as anything, a question of custom and tradition. Very frequently it’s a question of what certain important U.S. senators want. For example, when a new seat was established by statute on the Fourth Circuit in 1984, President Reagan nominated a North Carolina attorney to it, Emory Sneeden—importantly, a North Carolina attorney who had previously worked for the late Republican South Carolina senator and chairman of the Judiciary Committee, Strom Thurmond. Sneeden resigned shortly afterward and passed away from cancer, but he was replaced by another Thurmond staffer, William Wilkins, whose chambers were in South Carolina. When he resigned in 2008—and Thurmond was no longer on the scene—President Obama replaced him with Judge Albert Diaz of North Carolina, a state at the time represented by a Democrat (Kay Hagan), unlike South Carolina. The Fifth Circuit has also had considerable movement in the placement of their seats, with two seats having been taken from then-Democratic Louisiana and given to Republican Mississippi. 

The most recent and acrimonious case of state-switching came from the Ninth Circuit, where President Reagan replaced the conservative Californian Joseph Sneed—who himself had taken a traditional Washington seat—with his associate attorney general, Stephen Trott. Trott, in turn, set up chambers in Idaho, and when he resigned in 2004 the seat remained vacant for ten years as the California and Idaho senators argued over who should get it. Eventually under President Obama—after then–Senate Majority Leader Harry Reid (D-NV) nuked the filibuster—Dianne Feinstein (D-CA) got her way and Trott was replaced in California by John Owens. Surely one can appreciate Obama’s thinking: California was represented by senior Democrats and Idaho by Republicans, so California should get the seat. Nevertheless, during his time on the Judiciary Committee during the last Trump administration, Mike Crapo (R-ID) would bring up his stolen seat with some frequency to scoff at Democratic process complaints. 

The Third Circuit

So it can be done. Should it be done in Delaware? Yes. 

First of all, there is no reason for Delaware to have two out of 14 seats in the Third Circuit. That’s around 15% of the authorized judgeships on the circuit compared to eight for Pennsylvania (57%) and four for New Jersey (29%). By contrast, Delaware has around one million residents—compared to thirteen million in Pennsylvania and nine and a half million in New Jersey. In other words, Delaware has 4% of the circuit’s population compared to Pennsylvania’s 55%, and New Jersey’s 40%, but it still has 15% of the circuit judgeships.

Delaware isn’t helped by breaking down the caseloads, either. According to the Administrative Office of U.S. Courts, in 2023 there were 1,984 appeals to the Third Circuit from its district courts. Of those, only 145 (7%) came from Delaware, whereas 514 (26%) came from New Jersey, and 1,325 (67%) came from Pennsylvania. 

If Delaware were reduced to one circuit judge, it would have 7% of the judgeships—commensurate with its 7% of the docket and still outstripping its 4% of the circuit population. So on the judicial merits there’s no reason for Delaware to have this seat. 

It makes sense to move the seat from a substantive policy perspective as well, because Trump would be better served looking at a deeper applicant pool elsewhere in the circuit. The fact is that Delaware has a relatively insular bar, dominated by state-law corporate lawyers and intellectual-property litigators. It’s not good fishing for the kind of pipe–swinging generalists preferred by Trump. Even its once-vaunted Republican U.S. Attorney, David Weiss, is best known for trying to give Hunter Biden a sweetheart deal so outrageous that the judge refused to accept it. Speaking of whom, while the two Delaware federal district judges appointed by Trump are good, they’re 60 and 58 years old. That’s not exactly a recipe for generational change. On the other hand, New Jersey and Pennsylvania not only have plenty of rock-solid native sons, but they’re young. 

No Good Reason Why Not

The only open question, really, is Senate politics. With the seats moved to Mississippi, North Carolina, and California, there’s precedent for a president to move judgeships to states represented by their party’s senators—as would be the case now, were the seat moved to Pennsylvania. At the same time, population would counsel putting the seat in New Jersey. In both cases there are great choices available to fill the seat. 

The California case also shows that, in this case, might makes right: Feinstein got her judgeship once Crapo could no longer mount a filibuster. With most such moves in the Senate, the smart question is, “But what about when the shoe is on the other foot?” As Crapo can attest, though, that time is now. The modern precedent was set when his seat was stolen. Obama and Reid wrote that check and now Trump and Thune can cash it.

Furthermore, Democrats are unlikely to see the value in moving seats themselves. After all, even the reddest of states with multiple circuit judgeships have prominent Democratic politicians who would resist giving up what they see as their patronage. And, most importantly, with an office of federal public defender in nearly every district court in the country, even the most conservative states have a deep pool of reliable progressive candidates.

But, in the end, any objections will be muted—if they are expressed at all. The fact is that pushing the envelope to add a well-qualified conservative circuit judge won’t expend political capital in the Senate, and might very well build it. The same senators who grumbled quietly—or loudly—about Robert Kennedy or Tulsi Gabbard will enjoy fighting on solid Republican ground for a change. Your average Senate Republican dreads being asked about tariffs and will welcome the chance to be asked about the Federalist Society instead. Breaking china for reconciliation is work; breaking china for judges is fun. 

Also fresh in these senators’ minds is the boorish victory dance last December from then–Majority Leader Chuck Schumer (D-NY) when he and Biden beat the Trump-McConnell confirmation record by one. Never mind that their numbers were just numbers with no real transformation of the judiciary, unlike during the first Trump term. Senate Republicans would be only too happy to pick up the football Schumer spiked and run it downfield. And, as with last time, Senate Republicans aren’t just looking for numbers: they’re looking for transformation. Moving a seat to get the best possible nominee in order to flip a circuit gives them that. As long as the nominee meets standard Senate-Republican qualification tests—did well in school, clerked for a good judge, excelled in prestigious and competitive positions—Republican senators won’t really care what state he or she is from. 

The loudest likely loser here—Delaware’s senior Democratic senator Chris Coons—is in a particularly weak position to complain. For the last year, Marsha Blackburn (R-TN) and Thom Tillis (R-NC) were eager to get his help stopping judicial picks in Tennessee and North Carolina that they didn’t support—but Coons was nowhere to be found, voting to advance them all from the Judiciary Committee. He knew this Delaware-based vacancy was on the horizon; if he didn’t want to get rolled in the future, he should have bought some insurance with one of his Republican colleagues by helping them preserve their prerogatives. Instead, he steamrolled them. In the Senate, what goes around comes around. 

President Trump has a real opportunity to put a lasting mark on a court that’s quietly important to the country—and personally important to him—by selecting two young conservatives for its vacant seats. He shouldn’t let Delaware get in his way.

Image by Carol M. Highsmith and sourced via Wikimedia Commons.