Thursday

November 14th, 2019

The Courts

Thanks to Trump, the liberal 9th Circuit is no longer liberal

Ben Feuer

By Ben Feuer The Washington Post

Published March 1, 2019

Thanks to Trump, the liberal 9th Circuit is no longer liberal
President Donald Trump and conservative commentators routinely mock the U.S. Court of Appeals for the 9th Circuit as intolerably liberal: It's the "Ninth Circus" to Rush Limbaugh, the "Nutty Ninth" to NRATV's Dan Bongino, "a complete & total disaster," according to the president.

For the political right, it's an institution loathed for once finding that the words "under God" meant mandatory public-school recitation of the Pledge of Allegiance runs afoul of the First Amendment; for once engaging in an all-night battle with the Supreme Court over the constitutionality of an execution; and for thrice enjoining the Trump administration's infamous travel ban. The 9th Circuit is so notorious among congressional Republicans that as recently as the last Congress, they held hearings to consider splitting up the circuit geographically, on the premise its rulings, which once applied to a reported 4 percent of the country, now cover 20 percent of Americans - too much liberal influence, perhaps.

But that's about to change. Once the president's current 9th Circuit nominees are confirmed, there will be 12 GOP appointees among the court's 29 full-time judges with one vacancy left for the president to fill. Close to half of the bench will lean right. Thanks to Trump, the liberal 9th Circuit will be liberal no more.

The president has conservative nominees slated to fill four out of five vacancies: Daniel Collins, who, according to Climate Liability News, "has defended the oil industry in high-profile climate and environmental cases," and who clerked for the late Supreme Court Justice Antonin Scalia; Daniel Bress, who also clerked for Scalia and, at only 39, would likely serve on the federal appellate bench for decades; Kenneth Lee, who worked in President George W. Bush's White House and has written articles criticizing affirmative action programs; and Bridget Bade, a federal magistrate judge who clerked for conservative Judge Edith Jones of the 5th Circuit.

If confirmed, these four will join three recent Trump appointees already on the 9th Circuit with conservative bona fides: Ryan Nelson, who served on the staff of former senator and Trump attorney general Jeff Sessions; Mark Bennett, a onetime Republican attorney general of Hawaii; and Eric Miller, who clerked for Justice Clarence Thomas, was opposed by liberal-leaning Native American advocacy organizations and was confirmed earlier this week over the objections of both of his Democratic home-state senators.

These new judges follow several 9th Circuit judges who were among the most liberal ever to sit on a federal court, including the late Stephen Reinhardt, the "liberal lion" who authored the opinion tossing California's ban on same-sex marriage; and the late Harry Pregerson, arguably even more liberal than Reinhardt, who in his 1979 confirmation hearing told the Senate that "if I had to follow my conscience or the law, I would follow my conscience." They're also filling vacancies left by unpredictable, libertarian-leaning conservative Judge Alex Kozinski, who retired in 2017 facing sexual harassment allegations, and the late John Noonan, a tough-to-label moderate whose decisions often leaned on Catholic moral teaching.

These new and soon-to-be judges will have a significant impact on the median political alignment of the 9th Circuit, and will likely make a difference in at least three ways: First, because the 9th Circuit decides many appeals in three-judge panels composed of both active judges and older, often part-time judges - a group of 18 "senior" judges split 9-9 between Republican and Democratic appointees - these numbers mean any given panel will have a nearly even chance to draw a majority of Republican-appointed judges as Democrat-appointed ones. That means the 9th Circuit will boast a political balance not seen in decades, at least since President Jimmy Carter and a post-Watergate Democratic congressional majority added 10 judgeships to the court in the late 1970s.

Second, it means that en banc panels, which are 11-member super-panels typically made up of randomly selected active judges, have a much greater chance of seating a conservative majority than before Trump took office. En banc panels have extraordinary power to reshape the circuit's law because they can redecide three-judge panel decisions and even overrule the circuit's own past precedent.

Third, Trump's group of nominees includes no slouches. They're all experienced practitioners with stellar credentials. Accordingly, once fully staffed, the court's conservative wing will be newly empowered with sharp, young minds capable of steering the law in a more conservative direction over time.

Recall how we got here: In 2013, when Democrats controlled the Senate, they did away with filibuster protection for the appointment of federal judges (other than Supreme Court justices), and the current Republican-led Senate is effectively doing away with informal confirmation delays arising from the "blue slip" process, which once allowed home-state senators to indefinitely impede votes on disputed nominees. When Trump took office, he had one of the highest judicial vacancy rates in recent history, which a New York Times review in early 2017 suggests that he could appoint close to 40 percent of the federal judiciary during his tenure in the White House.

And unlike some of the appointees of his immediate Republican predecessors, there's no need for Trump's nominees to be considered moderate enough to secure a filibuster-proof 60-plus votes. With little need to gain interparty support, Trump can choose nominees who've been approved by staunchly conservative legal groups like the Federalist Society.

This translates to a shift in the development of the law in a jurisdiction that covers roughly 60 million people. While the Supreme Court has stepped in over the years to overrule the 9th Circuit, only a few cases wind up getting high court review each year, compared to more than 7,000 cases the 9th Circuit decides in the same period. Some of those are news-making decisions that the Supreme Court just doesn't take up, such as a decision allowing local governments to restrict gun sales and another blocking the Trump administration from unilaterally reinterpreting U.S. asylum law.

But thousands are routine cases unlikely to merit high court involvement: whether an immigrant seeking review of a deportation order will be allowed to remain in the country; whether a criminal defendant's challenge to his conviction will be affirmed or set aside; or whether a police officer will be deemed to have acted reasonably in the line of duty. Appellate courts do most of their work in these cases, which are less likely to create new law and in which a judge's ideological bent can, and often does, make a difference. A more conservative 9th Circuit means a more conservative legal regime for a large portion of the country.

In reality, the 9th Circuit's liberal reputation has been overstated for some time. President Barack Obama's nominees to the court were less liberal than President Bill Clinton's, whose nominees, in turn, were less liberal than Carter's. Likewise, reports claiming the 9th as the most-reversed circuit by the Supreme Court are misleading: It is the largest circuit and hears the most cases overall, so it produces more potential cases for the Supreme Court to review. As a percentage of cases heard, though, the 9th Circuit was only the fourth-most reversed circuit in the 2017-2018 term.

Whether it's been overstated, however, conservatives will have a hard time calling the 9th Circuit the "Nutty Ninth" with 13 Republican nominees to 16 Democratic ones. Within a few years, Trump will have rendered this liberal icon a thing of the past.

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Ben Feuer is chairman of the California Appellate Law Group LLP and a former clerk for the 9th Circuit Court of Appeals.

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