Young, conservative judges appointed by President Trump might tip the country’s most liberal federal appeals court to political balance.
The 9th U.S. Circuit Court of Appeals is on track to have 13 Republican appointees among its 29 full-time judges once the Senate confirms Trump’s latest nominee to the San Francisco-based court and the president fills one remaining vacancy. With 16 judges tapped by Democratic presidents, the 9th Circuit is the closest it’s been in more than two decades to achieving an ideological balance.
When Trump took office in January 2017, 18 of the judges on the 9th Circuit were named by Democratic presidents, and seven were appointed by Republicans. Trump also inherited four open seats on the federal appeals court.
Now, more than two years into his first term, Trump has tapped six judges to the San Francisco-based court, which is the country’s largest federal appeals court and has been described as the most liberal. The Senate confirmed two of those nominees — Kenneth Lee and Daniel Collins — this month, and the Senate Judiciary Committee held a confirmation hearing for another 9th Circuit pick, Daniel Bress, on Wednesday.
“That kind of fortifies it in a different direction,” said Adam Feldman, founder of Empirical SCOTUS, a blog focused on the high court. “That’s the intention for sure.”
The retirement of Judge Alex Kozinski in 2017 following allegations of sexual harassment, and the unexpected 2018 death of Judge Stephen Reinhardt, considered to be the “liberal lion” of the 9th Circuit, created two additional vacancies for Trump to fill.
While Trump’s picks for the 9th Circuit will likely affect the court’s political alignment, Feldman noted it’s difficult to predict how they will rule, particularly since those appointed to the court by Trump have done minimal work so far.
“But as a general matter, we see that there’s a high correlation of Republican nominees sticking together and Democratic nominees sticking together on panels and en banc votes, so the likelihood is that’s going to push the 9th Circuit further to the right,” Feldman said. “How far is anyone’s guess, but just the sheer number of appointments is staggering.”
Over the course of their eight years in office, Presidents George W. Bush and Barack Obama each tapped seven judges for the 9th Circuit.
But Russell Wheeler, a visiting fellow at left-leaning think tank the Brookings Institution, cautioned against drawing broad conclusions about a rightward shift in the 9th Circuit’s jurisprudence as Trump fills the court with his picks.
“The real question is will they be judges on the Right like Reinhardt was on the Left — very aggressive and very liberal who works very hard to put his mark on the court — or will they be something else,” he said. “I think it’s too soon to say. If we have this conversation in 10 years, it’ll take a different course.”
States, individuals, and organizations seeking to undo Trump’s policies have found a haven for their legal challenges in the 9th Circuit, which has reviewed and subsequently struck down a number of the president’s initiatives.
A recent analysis showed the 9th Circuit has ruled against the Trump administration 29 times, more than any other federal appeals court in the country.
In 2017, the San Francisco-based court invalidated Trump’s travel ban, which placed travel restrictions to the U.S. on five Muslim-majority countries, and last year, it blocked the Trump administration from rolling back the Deferred Action for Childhood Arrivals program. Created by Obama in 2012, DACA protects immigrants brought to the U.S. illegally as children from the threat of deportation.
The Supreme Court, however, reversed the 9th Circuit’s ruling in the travel ban case in June and upheld the president’s order.
Trump’s losing streak before the 9th Circuit has prompted him to call the court a “big thorn in our side” and “a complete and total disaster.”
Cases that come before the 9th Circuit are heard by three-judge panels of active judges and judges who have taken senior status, the latter of which are evenly split between those named by Republicans and Democrats. With the number of Republican-appointed judges poised to reach 13, the odds of drawing a panel with more than one judge tapped by a GOP president, or with more than one Trump appointee, are now greater, Wheeler said.
That could prove to be beneficial to the Trump administration, particularly as legal challenges related to the president’s wall along the U.S.-Mexico border and new asylum policies weave their way through the lower courts.
“That parity makes a big difference,” Feldman said. “And the hope and expectation is that it will.”
