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Nominee for Alito's 3rd Circuit Seat Appears to Be a Centrist at Heart
New Jersey Law Journal
June 23, 2009
Don't look for a 180-degree swing between Samuel Alito Jr. and Joseph Greenaway Jr., President Barack Obama's nominee to fill Alito's seat on the 3rd U.S. Circuit Court of Appeals.
Greenaway is a centrist who was a prosecutor and corporate lawyer before he began 13 years of service on the federal district court in Newark, N.J.
The 36 published decisions by the 3rd Circuit on appeals taken from Greenaway rulings since 1996 depict a trial judge who appears to have no ideological sharp elbows when it comes to issues such as sentencing, employee rights and deference to government.
And if there is anything to learn from the four decisions in which Alito joined in appeals of Greenaway's rulings, consider this: They were in sync three times. The only case in which Alito voted to reverse Greenaway -- a prisoner-rights matter -- the future Supreme Court justice with a conservative reputation took a more liberal line than Greenaway had taken.
Obama nominated Greenaway to the appeals court in Philadelphia and Judge Beverly Martin to the 11th U.S. Circuit Court of Appeals on Friday, saying they have "distinguished themselves as first-rate jurists with unflagging integrity and evenhandedness."
Greenaway and the president have much in common. They are both black men with degrees from Columbia College and Harvard Law School, but while Obama's path to high office took him through the streets of Chicago as a community organizer, Greenaway took a traditional route.
After leaving Harvard Law in 1981, 10 years before Obama, he clerked for U.S. District Judge Vincent Broderick in Manhattan in between two stints at Kramer Nessen, Kamin & Frankel in New York.
He was an Assistant U.S. Attorney in Newark from 1985 to 1990 and finished up as chief of the narcotics bureau.
He was in-house counsel at Johnson & Johnson from 1990 to 1996, when he was appointed to a district judgeship.
Getting the measure of trial judges' abilities by studying the reported dispositions of appeals from their decisions is tricky business because only the cases that pose difficult and novel questions are published.
According to a search on Westlaw, the 3rd Circuit has reviewed 160 of Greenaway's decisions since 1996. For what it's worth, of the 36 deemed worthy of publication, 18 were affirmed in all respects, 12 were reversed in toto and six ended in a mixture of affirmance, remand and reversal. There were dissents in six of the cases.
Alito's only published opinion reviewing a Greenaway decision was in Shane v. Fauver, 213 F.3d 113 (2000). Writing for a unanimous court, Alito found that in dismissing a suit for better conditions at Northern State Prison in Newark, Greenaway erred when he applied a test under a law designed to limit such suits rather than a test under an earlier, pro-prisoner regime.
While the result appears to be a blow struck by Alito and the panel for prisoner rights, the decision is mostly about which procedures to follow in an unusual instance in which a pro se plaintiff later becomes represented by counsel and how the circumstance is affected by the Prison Litigation Reform Act -- a law designed to limit suits by prisoners.
In another reversal of a Greenaway decision, Alito dissented. The majority ruled in Suter v. Munich Reinsurance Co., 223 F.3d 150 (2000), that the federal court had jurisdiction in a suit by the state Commissioner of Insurance against a foreign re-insurer. Greenaway had remanded the case to a state court and Alito said he got it right.
A majority that included Alito affirmed Greenaway's decision in Hedges v. Musco, 204 F.3d 109 (2000), to allow drug testing at a high school in Bergen County, and he joined an affirmance of In re O'Brien Environmental Energy, Inc., 181 F.3d 527 (1999), a case interpreting the rules governing the purchasers of debtor companies in Chapter 11 proceedings.
In a ruling in favor of the government that received a lot of publicity, Greenaway upheld the seizure of allegedly obscene material showing naked children. But a unanimous appeals panel reversed, saying the material, French and German nudist magazines, was not obscene because it did not depict sex acts. U.S. v. Various Articles of Merchandise, Schedule No. 287, 230 F.3d. 649 (2000).
Alito's seat has been vacant for three years because the judge-picking process had slowed during the final years of the Bush administration. Bush nominated Shlomo Stone of Walder, Hayden & Brogan in Roseland, N.J., but the Senate took no action before the session ended after Obama's election.
Sen. Frank Lautenberg, who, with Democratic colleague Robert Menendez supported Greenaway's nomination says, "Judge Greenaway has the integrity, knowledge, expertise and judgment to protect New Jerseyans -- and their rights. He will make a great judge for our state and for the entire region."
Greenaway says, "I am grateful to President Obama for honoring me with this nomination. I also want to thank Senators Lautenberg and Menendez for their confidence and support. I look forward to continuing my life of public service in this new position. Lastly, I wish to thank God and my family."
