President Trump regularly rails against the San Francisco-headquartered 9th Circuit Court of Appeals, yet he has not taken an opportunity reshape the nation’s largest and arguably most liberal appeals court. Both the court’s supporters and detractors are wondering when he will.
There are five vacancies now on the 9th Circuit — which Trump most recently called “broken and unfair” — and two more are coming in the next eight months. That means Trump could significantly influence the West Coast judiciary by nominating the type of young, ideologically conservative judges he has tapped for other courts.
“Trump is going to have an enormous effect on the 9th Circuit,” said Erwin Chemerinsky, dean of the UC Berkeley School of Law. “Trump right now can fill about 20 percent of the seats on the court, and he still has at least three years left in his term. He could dramatically alter the composition of the court.”
Chemerinsky said the stakes are “huge” in part because of the 9th Circuit’s size and large caseload. Nearly one fifth of the U.S. population lives in the nine western states spanned by the 9th Circuit, ranging from liberal California, Oregon and Washington to conservative Arizona, Idaho and Alaska.
While the 9th Circuit has a reputation of having its decisions overturned by the U.S. Supreme Court — which happened 88 percent of the time during the court’s 2016 term — the Supreme Court reviewed just eight of the 9th Circuit’s 6,554 rulings that year. That means that, love them or hate them, the vast majority of court’s decisions become the law of the land.
So why hasn’t Trump moved faster on the 9th Circuit?
Trump is going to have an enormous effect on the 9th Circuit
Erwin Chemerinsky, dean of the UC Berkeley School of Law
One reason is his judicial attentions have been poised elsewhere. The White House and Senate moved quickly last year to confirm Trump’s Supreme Court nominee, Neil Gorsuch. The Senate then confirmed 12 of Trump’s nominees to U.S. appeals courts by the end of 2017, a record for a president’s first year in office. By contrast, President Obama was only able to get three appeals court judges confirmed during his inaugural year.
In nominating those 12 appeals court judges, the White House tended to focus on states that Trump won during the 2016 election, and also those represented by key GOP senators. Trump’s first two appeals court nominations involved Kentucky judges on the 6th Circuit, of special interest to Senate Majority Leader Mitch McConnell. Most of the remainder involve appeals courts in the Midwest and South.
The Senate “blue-slip” tradition may be another factor. The “blue slip” refers to a gentleman’s agreement, not a hard rule, that allows a U.S. senator to reject judicial nominees for their home state by refusing to return a positive blue slip to the Senate Judiciary Committee chairman.
If this tradition is honored, Sen. Dianne Feinstein and other west-coast Democrats will have leverage over Trump nominations in their states. But conservative groups are pressuring Senate Judiciary Chairman Charles Grassley to abandon that tradition, and Grassley has indicated he may not honor blue-slip objections in all situations.
A test case is coming up. Last year, Trump nominated a 44-year-old federal prosecutor from Oregon, Ryan Bounds, to an open seat on the 9th Circuit. Like many of Trump’s judicial nominees, Bounds is a member of the Federalist Society, a conservative group that Trump once stated would be the selector of all of his judicial nominees.
Oregon’s two U.S. senators, both Democrats, objected to Bounds’ nomination, stalling the confirmation. This month, Trump renominated Bounds to the seat, and Grassley is declining to say if his confirmation process will advance. “Sen. Grassley has not made any statements on this particular nominee,” said Taylor Foy, a spokesman for the judiciary chairman.
Feinstein insists that Grassley consult with Oregon’s senators. “If a nominee doesn’t receive [favorable] blue slips from both home-state senators, the committee shouldn’t move forward,” Feinstein said in a statement to McClatchy.
For its part, the White House declined to comment on its approach to the 9th Circuit, saying only that “we are working with and extensively consult all Senators, from both parties, throughout the nomination process.”
If Grassley abandons the blue-slip process, it would eliminate the incentive for Trump to consult with Democrats and could change the 9th Circuit for decades to come, said Barry McDonald, a law professor at Pepperdine University in California.
“He and his advisers have stated they are looking to appoint young, ideologically conservative judges, so they will be on the bench for a number of years,” said McDonald. “The more judges he’s able to appoint, the more of the mark they are going to leave on the law.”
Yet McDonald, who once clerked for Supreme Court Chief Justice William Rehnquist, said abandonment of bipartisan consultation will only add to partisan divides in the judicial system, resulting in more judges on the political fringes. “The blue slip plays a moderating role.”
Eliminating the blue slip process would also inflame already tense relations between Feinstein and Grassley, and Feinstein and Trump.
Through much of last year, the White House was cautious in dealing with Feinstein, who is both a ranking member of Judiciary and a member of the Senate Intelligence Committee, giving her sway over the Senate’s Russia investigations. But Trump recently referred to Feinstein as “Sneaky Diane” in a tweet, after she used her Judicial Committee seniority to release testimony from the founder of the firm behind the infamous Trump dossier.
Controversy over blue slips flares in nearly every administration, depending on who is in power. When Obama was president, Judiciary Chairman Patrick Leahy, a Democrat from Vermont, honored the blue slip tradition, and Republicans used it to block many of Obama’s nominees, including those to the 9th Circuit. That obstruction prompted a 2014 New York Times editorial urging Leahy to abandon the blue slip.
With Trump in power, conservative groups are running ads denouncing Democrats who use their blue slips to block the president’s nominees.
Over the last two months, Feinstein and Grassley have engaged in dueling op-eds over the issue. Grassley argues that defenders of the blue-slip tradition overstate how consistently it has been honored in the Senate over the decades. Feinstein notes that Grassley used the blue slip to block nine of Obama’s nominees in 2015 and 2016.
Partly because of its regional location, the 9th Circuit has decided important cases over the years involving the environment, same-sex marriage and civil rights. Despite its liberal reputation — Rush Limbaugh once called it “the 9th Circus“ — most experts say the appeals court has moderated in recent years, in part because of the retirement of Jimmy Carter and Bill Clinton appointees.
Still, the 9th Circuit and its three-judge panels have struck down two of Trump’s travel bans, and also blocked a Trump order to withhold funding from so-called sanctuary cities. That April ruling prompted former White House Chief of Staff Reince Priebus to tell reporters, “It’s the 9th Circuit going bananas.”
The full 9th Circuit is authorized to have 29 judgeships. When Trump came to office, there were four openings, which became five in December when Alex Kosinski, a libertarian who regularly sided with the liberal majority, announced his retirement amid allegations of inappropriate sexual behavior.
Of the 24 judges now sitting, 18 were appointed by Democrats, and six were appointed by George W. Bush, a Republican. If Trump is able to get all of appointees confirmed this year, that split will shrink to 17-12. Conceivably, Republican appointees could exceed Democratic appointees by the time Trump leaves office.
Since the 9th Circuit operates with randomly assigned, three-judge panels, Trump’s nominees could issue much different rulings than the ones that now dog him, said Kevin R. Johnson, an immigration expert and dean of the UC Davis School of Law. “With more conservatives in the pool, you are more likely to have more conservatives on the panels,” he said.
Johnson said he expects the White House to appoint some “highly qualified people” but ones with a far more right-leaning ideology than many of their 9th Circuit predecessors.
“Trump will move the court to the right,” Johnson said. “Possibly quite a way.”