Trump suggested last April that he was thinking about breaking up the ultra-liberal Ninth Circuit Court of Appeals following its repeated attacks on his immigration policies. Now, he actually has the chance to do it.
“The most liberal appeals court in America could soon be getting a Republican makeover if President Trump and Senate GOP leaders are able to fill seven open seats with conservative picks,” reported Fox News on Tuesday. Standing in Trump’s way is an army of Democrats determined not to let him disrupt the massive, leftwing court.
The Ninth Circuit Court is the largest federal appellate court in the country, overseeing cases in California, Nevada, Arizona, Alaska, Oregon, Nevada, Washington, Montana, and Hawaii. The court was established in 1891, when only 4% of the US population lived in those states. Today, this region is home to over 64 million people.
The Ninth Circuit has 29 judges and 7 vacancies. The current political split is 16-6. The most recent spot opened up in late March when Judge Stephen Reinhardt died unexpectedly of a heart attack.
“Adding seven conservatives to the court would very much affect its ideological balance,” says UC Berkeley dean Erwin Chemerinsky. “It would push the court much further to the right.”
Such a move could substantially alter the court’s complexion for decades to come.
The Ninth Circuit has been politically unbalanced since the late 1970’s, when a key expansion allowed President Jimmy Carter to appoint 15 liberal judges to the court. President Obama appointed seven justices to the Ninth Circuit during his time in office. His predecessor, George W. Bush, appointed six.
The court’s political imbalance has earned it nicknames like the “Ninth Circus” and “Nutty Ninth.” Nearly 80% of the court’s rulings that make it to the Supreme Court are overturned. In 2016, that percentage jumped to 88%.
“It just shows everyone how broken and unfair our Court System is,” tweeted Trump in January after a California judge blocked the Trump Administration from shutting down the DACA program. “When the opposing side in a case (such as DACA) always runs to the 9th Circuit and almost always wins before being reversed by higher courts.”
Despite Trump’s criticisms, filling the Ninth’s vacant spots hasn’t been a priority. There were four spots open when Trump was elected, and now there are seven. So far, he’s only made two nominations (Ryan Bounds and Mark Bennett). Even if he managed to fill all seven seats, Democrats would still outnumber Republicans 16-13.
Trump’s success in changing the DNA of the Ninth Circuit will hinge on the midterm elections in November, says Chemerinsky. If Republicans maintain control of the Senate, “I think ultimately Trump will get his picks through unless they are unqualified or very objectionable. But if the Democrats take the Senate in November, I think it will be very difficult for him to get anyone confirmed.”
The next challenge will be to prevent blue slip nonsense that could block Trump’s nominations.
“With many states in the Ninth Circuit having two Democratic senators, it makes it tricky to get through committee with the way the parliamentary games are played in the Senate,” says Ilya Shapiro of the libertarian Cato Institute.
Home state senators in the past have been able to block nominees by refusing to return a “blue slip” to the Senate Judiciary Committee. This loophole has been utilized by both parties to block judicial nominees.
“It’s no secret that President Trump and Republicans want to reshape the Ninth Circuit and we will not accept unwarranted, partisan attacks on our courts,” says Senator Dianne Feinstein (D-CA). “I am fully committed to ensuring that Ninth Circuit nominees reflect our state’s communities and values and are well-regarded by their local bench and bar.”
Editor’s note: Many say the most important accomplishment of the Trump administration to make the courts conservative again.