Taking Care of Business: Trump Has Flipped the 9th Circuit — and some new judges are causing a ‘shock wave’

Screenshot 20200223 101255 Gallery President Trump and Mitch McConnell often discuss how many judges they are getting approved. Everyone knows that is a good thing but the LA times documenter how efficient the new judges have already been. Taking over liberal California with several conservative judges.
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President Trump and Mitch McConnell often discuss how many judges they are getting approved. Everyone knows that is a good thing but the LA times documenter how efficient the new judges have already been. Taking over liberal California with several conservative judges.

LA Times Reported

When President Trump ticks off his accomplishments since taking office, he frequently mentions his aggressive makeover of a key sector of the federal judiciary — the circuit courts of appeal, where he has appointed 51 judges to lifetime jobs in three years.

In few places has the effect been felt more powerfully than in the sprawling 9th Circuit, which covers California and eight other states. Because of Trump’s success in filling vacancies, the San Francisco-based circuit, long dominated by Democratic appointees, has suddenly shifted to the right, with an even more pronounced tilt expected in the years ahead.

Trump has now named 10 judges to the 9th Circuit — more than one-third of its active judges — compared with seven appointed by President Obama over eight years.

“Trump has effectively flipped the circuit,” said 9th Circuit Judge Milan D. Smith Jr., an appointee of President George W. Bush.

To assess the early impact of these appointments, The Times interviewed several judges on the 9th Circuit. Some either declined to discuss their colleagues or inner deliberations or refused to be quoted by name, saying they were not authorized to speak about what goes on behind the scenes.

To be sure, some of the new appointees to the 9th Circuit have quickly won the respect of their colleagues. But the rapid influx of so many judges — most without judicial experience — has put strains upon the court and stirred criticism among judges appointed by both Democratic and Republican presidents.

Among those who have caused the most consternation is Judge Daniel P. Collins, a former federal prosecutor and partner of a prestigious law firm.

“I think he will be fine, though he will never be a go-along-get-along guy,” the judge said.

The behind-the-scenes tensions over Collins spilled into public last month in an order rejecting a call,presumably made by Collins, to reconsider a panel’s decision. The panel had upheld a lower court’s ruling in favor of suppressing evidence from a tribal officer’s search of a vehicle on a public highway. The highway ran through tribal land.

Collins, dissenting from the court’s refusal to reconsider, was joined by three judges, two Trump appointees and one appointed by President George W. Bush.

Collins called the panel’s decision “deeply flawed,” “plagued” by legal error and marked by “confused analysis.”

Two Democratic appointees whose ruling Collins wanted reversed wrote that even in the genre of such dissents, Collins’ was was an “outlier.”

“It misrepresents the legal context of this case and wildly exaggerates the purported consequences of the panel opinion,” wrote Judge Marsha S. Berzon, a Clinton appointee, and Judge Andrew D. Hurwitz, an Obama appointee.

“This case involves an unusual factual scenario and a technical issue of Indian tribal authority,” they said. “It certainly does not present a ‘question of exceptional importance’ meriting en banc consideration.”

The 9th Circuit court has been dominated by Democratic appointees for decades. In 1978, a federal law created 10 new judgeships on the court, allowing President Carter to fill them all. The liberal Carter appointees were followed by judges named by three Republican presidents and two Democrats.

Clinton’s and Obama’s appointees were not uniformly liberal, however, and the 9th Circuit has been growing more moderate. One study, examining the years 2010 to 2015, found that the 9th Circuit was the third most reversed by the Supreme Court, following the Ohio-based 6th and Georgia-based 11th circuits.

Still, with Democratic nominees heavily outnumbering Republicans, there were usually enough votes to overturn conservative decisions by three-judge panels.

Smith predicted the full effect of the Trump appointees won’t be seen until 2021, when they will be carrying full caseloads.

But even now Democratic appointees are likely to be more reluctant to ask for 11-judge panels to review conservative decisions because the larger en banc panels, chosen randomly, might be dominated by Republicans, judges said.

That happened in July after a panel of the three Republican appointees upheld a Trump ruling denying federal family planning funds to clinics that referred women for abortions. A Democratic appointee called for en banc review, and a majority voted in favor. But the randomly selected 11-member panel had a majority of Republican appointees, including two named by Trump.

The 9th Circuit is by far the largest in the federal appeals court in the nation, and its judges are scattered over nine states.

Some judges elect to work alone with their staffs in offices or courthouses near their homes. Most 9th Circuit veterans have yet to have had any experience with the new appointees, and it could take years before they serve on a panel with each of them.

Trump appointed the successors to the late Judges Stephen Reinhardt and Harry Pregerson, two of the most liberal circuit judges in the nation and filled other slots created by Republicans who opted to take senior status.

The new appointees include Patrick Bumatay, the openly gay former prosecutor, and Daniel A. Bress, a former partner at the Washington, D.C., office of Kirkland & Ellis. The ABA rated both qualified. During a hearing in January on challenges to Trump’s immigration policies, Bress appeared ready to side with Trump.

The others are Kenneth Kiyul Lee, a partner in the Los Angeles office of Jenner & Block LLP, who received a well-qualified rating and VanDyke, a former solicitor general of Nevada and a federal deputy assistant attorney general.

In rating VanDyke unqualified for the job, the ABA wrote: “Mr. VanDyke is arrogant, lazy, an ideologue, and lacking in knowledge of the day-to-day practice, including procedural rules.” VanDyke cried during his confirmation hearing when attempting to rebut criticism that he might be unfair to the LGBTQ community.

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Trump’s rapid transformation of the circuit courts — three others went from a majority of active judges appointed by Democrats to Republican majorities — was accomplished with the support of Senate Republicans.

Nominations of appellate judges may no longer be blocked by filibuster, and Republican Senate leaders have declined under Trump to follow the practice of allowing an appointee’s home-state senators to veto the president’s choice.

“Trump has set all records for the number of appellate appointees,” said University of Richmond law Professor Carl Tobias.

The federal appeals courts are just one rung below the Supreme Court, and federal judges serve for life.

Though some 9th Circuit veterans expressed unease at the inexperience of some of the new judges, 9th Circuit Judge Consuelo Callahan said they would grow into the job.

“Both President Obama and President Trump appointed quite a few young people with really exceptional credentials, but not necessarily judicial experience,” said Callahan, appointed by President George W. Bush.

Four of Obama’s seven appointees had been judges.

“You have to learn to be a judge,” Callahan said.CALIFORNIACALIFORNIA LAW & POLITICSMaura DolanMaura Dolan is the California-based legal affairs writer for the Los Angeles Times. She covers the California Supreme Court and the U.S. 9th Circuit Court of Appeals. A California native, she graduated from UC Berkeley and has worked in Washington and Los Angeles for The Times. She is now based in San Francisco.