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3rd Circuit's chief judge takes senior status, giving Biden chance to tilt court

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(Reuters) - U.S. Circuit Judge D. Brooks Smith is stepping down from active service on the 3rd U.S. Circuit Court of Appeals, creating a new judicial vacancy for President Joe Biden that will allow him to potentially tilt the makeup of the Philadelphia-based court.

Smith, an appointee of former Republican President George W. Bush, is taking senior status but not retiring from the bench altogether after officially stepping down on Saturday as the 3rd Circuit's chief judge.

The court on Nov. 17 had announced that U.S. Circuit Judge Michael Chagares would take the reins as chief judge from Smith, who had served in the position since 2016, prompting speculation that Smith might move into senior status.

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His decision to do so was confirmed by Margaret Wiegand, the 3rd Circuit's circuit executive, and was first reported on Saturday by the Altoona Mirror, a newspaper in Blair County, Pennsylvania, where Smith was earlier a state court judge.

Smith did not respond to a request for comment on Monday.

Senior status is a form of semi-retirement for judges over the age of 65 who have completed at least 15 years on the federal bench. Presidents may name new full-time judges to fill those judges' seats.

He was first appointed to a Pennsylvania state court judgeship by former Republican Governor Dick Thornburgh in 1984 and was nominated by former Republican President Ronald Reagan to serve as a district judge in the Western District of Pennsylvania in 1988.

U.S. Circuit Judge D. Brooks Smith. Courtesy: 3rd U.S. Circuit Court of Appeals.

Smith was one of eight Republican-appointees among the 3rd Circuit's 14 active judges. The vacancy would be Biden's first on the court, and should he fill it, the 3rd Circuit would be evenly split between Democratic and Republican appointees.

Biden's judicial nominees to date have largely been in states where both senators are Democrats, easing the White House's ability to quickly secure nominee recommendations and avoid resistance to their confirmation.

Pennsylvania, by contrast, has one Republican senator, Senator Patrick Toomey, though it is unclear how that might impact any replacement.

Senate Judiciary Committee Chair Dick Durbin, a Democrat from Illinois, has continued a practice Republicans adopted during the Trump administration of not following the traditional "blue slip" process that gave home state senators a say over nominees for circuit court picks.

Former Republican President Donald Trump named four of the active judges on the court, which hears appeals from New Jersey, Pennsylvania, Delaware and the Virgin Islands.

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Nate Raymond reports on the federal judiciary and litigation. He can be reached at nate.raymond@thomsonreuters.com.

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