Former President Donald Trump consistently pulled rightward the West Coast’s most powerful federal court through his appointments. Now, as President Biden eyes the judiciary, he will have the chance to swing it back to the left.
Since the election, a number of aging judges on the 9th U.S. Circuit Court of Appeals have indicated that they are preparing to take senior status, a state of semi-retirement that frees up the president to pick a replacement. These nine members were all appointed by then-President Bill Clinton, and for years, they gave the court a reliable liberal bent.
Trump upended that power balance. During his term, he cut the 11-seat lead Democratic-appointed judges held on the 29-judge court to a margin of three. The court governs a massive amount of territory (California and six other Western states, as well as Alaska and Hawaii), and the consequences were considerable. The once-liberal bastion now often delivers conservative opinions on hot-button issues such as abortion, gun rights, and religious freedom cases.
A greater number of 9th Circuit court cases make it to the Supreme Court than any other court, in part because of the massive jurisdiction, but also because it has long attracted legal activists of all stripes seeking to win controversial cases. Trump in 2018 vowed to turn it conservative in 2018 after a rant in which he denigrated the court as “a disgrace.”
In the following two years, many believe that he did.
“President Trump appointed 10 judges to the 9th Circuit and dramatically changed its overall ideology,” said Erwin Chemerinsky, the dean of the University of California, Berkeley’s law school.
It’s unclear what the future of the court’s ideological makeup is, Chemerinsky added, since Biden has not had the opportunity to fill any vacancies yet.
But there’s a good chance that the court will not become the conservative bloc that many legal scholars predicted when Trump began shaping the court. Early last year, Judge Milan Smith, a Bush appointee to the 9th Circuit, declared that Trump’s 10th pick had “effectively flipped the circuit.”
That was, and still is, in many ways true. Cases are typically heard in three-judge panels, meaning that there is a greater probability that two of the judges will be Republican-appointed. And the court’s unique method of holding en banc sessions, in which the chief justice and 10 randomly selected judges take on complex cases, gives its conservative judges a better shot at winning majorities.
But declarations that Trump scored a lasting conservative victory with his appointments were premature, said Arthur Hellman, a law professor at the University of Pittsburgh who has written extensively on the 9th Circuit.
“It is right to say that it is a more centrist court,” Hellman said of the effect of Trump’s appointments.
But even that centrism will likely be toned down once Biden begins making his appointments, Hellman added. Once Clinton-appointed judges begin taking senior status, the balance of power will tilt more heavily to the left. That could happen within the year.
“I think they’re waiting to see how speedily the Senate acts,” Hellman said. “But I think we can expect several of the Clinton judges to take senior status in the next few months.”
Biden, since taking office, has not publicly commented on how he intends to handle judicial nominations, which were widely viewed as the most successful part of Trump’s presidency. While on the campaign trail, Biden said that he hopes to nominate a black woman to the Supreme Court, a move that many judicial activists pushed, unsuccessfully, for former President Barack Obama to make.
Biden faces a growing number of vacancies as an increasing number of judges move to senior status.
Author: Nicholas Rowan
Source: Washington Examiner: Biden poised to swing the 9th Circuit back to the left