In the month of May, two of President Donald Trump’s nominees to the famously liberal 9th U.S. Circuit Court of Appeals have been approved by the Senate, sharply along party lines. Kenneth K. Lee, who was nominated to replace the late Stephen Reinhardt, was confirmed by the Senate in a 52–45 vote on May 15. Daniel P. Collins, replacing the late Harry Pregerson, was confirmed by a 53-46 vote on May 21.
Both Reinhardt and Pregerson were regarded as two of the most liberal judges in the federal judiciary, while their replacements have faced backlash from Democrats for their conservative-leaning jurisprudence.
The Ninth Circuit Court of Appeals, headquartered in San Francisco, CA, is the largest Appeals Court in the US and appellate jurisdiction over nine states and two territories. In recent decades, it has come to be known for its more liberal-leaning jurisprudence and high rate of overturned decisions by the Supreme Court.
As most federal cases do not reach the Supreme Court, the circuit courts are often where federal cases are decided. The ninth circuit, as the largest federal appeals court with 29 judges, plays a major role in the American legal system. This makes the presidential appointment process vital in shaping the federal judiciary.
After President Trump became president, the Ninth Circuit actively opposed many of his administration’s federal decisions, stalling a number of executive orders, most notably Executive Order 13780, better known as the “travel ban.” The ban was later upheld by the Supreme Court.
When Trump assumed the presidency, there were eight vacancies on the Ninth Circuit, due to deaths and retirements. Former President Barack Obama did not manage to fill those vacancies on the court due to a Republican-controlled Senate.
Since taking office, President Trump has managed to successfully appoint six judges to the Ninth Circuit. Two vacancies remain with one nominee, Daniel Aaron Bress, who had his first hearing before the Senate Judiciary Committee on Wednesday, May 22. President Trump has yet to announce a potential replacement for Judge Diarmuid O’Scannlain, who assumed senior status in 2017, since the nomination of Oregon federal prosecutor Ryan Bounds—Trump’s initial pick to fill the vacancy—was withdrawn last July.
Currently the court is comprised of 16 judges appointed by Democratic presidents and 11 judges appointed by Republican presidents. If Trump successfully fills the two vacant seats, it would place the court at 16 Democratic appointed judges and 13 Republican appointed judges. This would be unprecedented for the California-based circuit court, which has included judges such as the late Stephen Reinhardt, often called the “liberal lion” of the Ninth Circuit.
Pertaining to this shift on the court, retired US District Judge Shira Scheindlin, a Bill Clinton appointee, noted in an op-ed the rapid rate that President Trump was nominating judges to the federal courts. Scheindlin noted that as of the publication of the April 3rd article, Trump successfully appointed 92 federal judges. This includes two for the Supreme Court, 37 for the Circuit courts of appeal, and 53 for the District courts.
In addition to this, 41 nominations have cleared the Senate Judiciary Committee and 23 of these judges were voted out of committee on a party-line vote, including Ninth Circuit judges Ryan D. Nelson, Eric D. Miller, Daniel P. Collins and Kenneth K. Lee.
Typically, appointees to the Ninth Circuit are given what is called the “blue slip” of approval from California’s two senators. “In the past, a nominee who did not receive what is known as a ‘blue slip’ from their home state senators, was not given a hearing or a Senate vote and the nomination was eventually withdrawn,” Scheindlin wrote.
Both California Senators Kamala Harris and Dianne Feinstein expressed sharp criticism of Lee and Collins.
President Trump’s two other appointees to the court, Michael J. Bennett and Bridget Shelton Bade, met bipartisan approval.
Scheindlin stressed, “These appointments are well on their way to reshaping the federal judiciary. Because so few cases are heard by the supreme court—between 80 and 90 per year—the circuit courts are often the final word on issues raised in federal court.”
Scheindlin claimed that Kenneth K. Lee “has denigrated the struggle for racial justice” while nominee Collins has fought to “weaken women’s rights, and has opposed criminal justice reform.”
However, Adam Feldman, a legal scholar for Empirical SCOTUS, said in an interview with Fox News, “As the 9th Circuit shifts to become more conservative and better parallels the Supreme Court’s ideological baseline, I could only imagine fewer liberal 9th Circuit decisions and fewer overturned 9th Circuit decisions generally.”
Feldman further predicted that with the death of the influential Judge Reinhardt last year, the Ninth Circuit would begin to shift its ideological baseline.
“As a general statement, with the death of [9th Circuit Judge Stephen] Reinhardt and Trump’s push for conservative judges to fill the circuit, I suspect that there will be a noticeable shift in a portion of ideological case outcomes.”
After the two remaining vacancies are filled, Democratic-appointed judges will still hold a three-seat majority for the foreseeable future, but the quick pace that President Trump and Senate Republicans have been able to affect the courts has surprised many. Given the president has over a year and a half left in his current term and his potential re-election, there is a possibility of more vacancies on the court, thus increasing the possibility of the court shifting to a majority of Republican-appointed judges.