Thanks to Trump, the liberal 9th Circuit is no longer liberal
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4/2/2020 Thanks to Trump, the liberal 9th Circuit is no longer liberal - The Washington Post
Thanks to Trump, the liberal 9th Circuit is no
longer liberal
The president’s recent appointments are tilting the balance of the court toward conservatives.
By Ben Feuer
Ben Feuer is chairman of the California Appellate Law Group LLP and a former clerk for the 9th
Circuit Court of Appeals.
Feb. 28, 2019 at 3:00 a.m. PST
President 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 former NRATV commentator 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. Almost 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 P. 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 A. Bress, who also clerked for
Scalia and at 39 would likely serve on the federal appellate bench for decades;
https://www.washingtonpost.com/outlook/2019/02/28/thanks-trump-liberal-ninth-circuit-is-no-longer-liberal/?noredirect=on 1/64/2/2020 Thanks to Trump, the liberal 9th Circuit is no longer liberal - The Washington Post
Scalia and, at 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 they’re ultimately confirmed, these four will join three recent Trump appointees
already on the 9th Circuit with conservative bona fides: Ryan D. 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.
https://www.washingtonpost.com/outlook/2019/02/28/thanks-trump-liberal-ninth-circuit-is-no-longer-liberal/?noredirect=on 2/64/2/2020 Thanks to Trump, the liberal 9th Circuit is no longer liberal - The Washington Post
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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 almost 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.
https://www.washingtonpost.com/outlook/2019/02/28/thanks-trump-liberal-ninth-circuit-is-no-longer-liberal/?noredirect=on 3/64/2/2020 Thanks to Trump, the liberal 9th Circuit is no longer liberal - The Washington Post
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
https://www.washingtonpost.com/outlook/2019/02/28/thanks-trump-liberal-ninth-circuit-is-no-longer-liberal/?noredirect=on 4/64/2/2020 Thanks to Trump, the liberal 9th Circuit is no longer liberal - The Washington Post
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.
Correction: A previous version of this post said Dan Bongino currently works for
NRATV.
Ben Feuer
Ben Feuer is chairman of the California Appellate Law Group LLP and a former clerk for the 9th
Circuit Court of Appeals.
https://www.washingtonpost.com/outlook/2019/02/28/thanks-trump-liberal-ninth-circuit-is-no-longer-liberal/?noredirect=on 5/64/2/2020 Thanks to Trump, the liberal 9th Circuit is no longer liberal - The Washington Post https://www.washingtonpost.com/outlook/2019/02/28/thanks-trump-liberal-ninth-circuit-is-no-longer-liberal/?noredirect=on 6/6
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