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Biden has bolstered 9th Circuit’s liberal flank, but has yet to match Trump’s impact

Donald Trump and Joe Biden during a debate.
President Trump and then-Democratic challenger Joe Biden during a debate on Oct. 22, 2020.
(Associated Press)
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President Biden is leaving a distinct mark on the U.S. 9th Circuit Court of Appeals, adding relatively young jurists of color who have bolstered the influential court’s liberal flank.

So far, the president has appointed three Asian women, a Black woman and two Latino judges, all of whom have extensive experience in legal fields important to progressives, including civil, labor and voting rights law. And he is poised to fill two additional seats on the circuit. The eight appointments during Biden’s first term would be one more than President Obama made to the court during his two terms in office.

“It’s clear that Biden is going to have a lasting influence on the 9th Circuit by virtue of who he has picked. He certainly has enhanced the diversity,” said UC Berkeley Law School Dean Erwin Chemerinsky.

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Despite the president’s leftward push, Chemerinsky cautioned against overstating Biden’s impact, saying he is trying to regain ground lost in an aggressive campaign by former President Trump to stack the nation’s federal benches with conservative jurists.

“He has not shifted the ideological composition” of the traditionally liberal, California-based court as much as Trump did, Chemerinsky said. The circuit’s judges, he said, are now “closely split between Democratic and Republican appointees.”

The political makeup of the judges who serve on the 9th Circuit, a massive jurisdiction that includes nine Western states and two U.S. territories, has broad implications. The court helps set legal precedent around some of the nation’s most pressing cultural and political issues, including gun control, religious freedom, environmental regulations, and labor and tech policy.

During his single term in office, Trump managed to appoint 10 judges to the 9th Circuit, four of whom replaced judges appointed by Democrats. Among the judges who departed was Stephen Reinhardt, who sat on the 9th Circuit for 38 years and was considered its “liberal lion.”

“Trump was able to have exaggerated importance in that way,” said Carl Tobias, a University of Richmond law professor who studies the court.

By comparison, the six judges Biden has appointed to the court all replaced older judges who were appointed by Democratic presidents and also leaned liberal. The two additional judges Biden is expected to replace were also appointed by Democrats.

Biden’s appointments still represent a net gain for liberals, particularly given that the liberal judges he replaced all remain on part-time “senior status” and will continue hearing appeals and issuing opinions. However, the effect is less than it would be had Biden replaced conservative judges, experts said.

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The White House did not respond to a request for comment on Biden’s impact on the court.

Federal appellate judges are meant to apply the law as set forth by the U.S. Constitution, Congress and prior court precedent, including as established by the U.S. Supreme Court. And they often eschew discussions about their own partisan beliefs.

But which president appointed a judge is a strong indicator of how that judge will rule on issues that straddle the nation’s political divide, experts said. Attorneys and other observers can often predict which way the court will land on a case based on the makeup of the panel of judges hearing it.

“We all know that there are many cases where the ideology of the judges makes all the difference,” Chemerinsky said. “As a lawyer, the first thing I want to know, as soon as I can find out, is who is [on] my panel.”

Because of the power of federal appellate judges to set legal precedents that can influence national policy on fundamental issues, presidents work with allies in the Senate, which must confirm judicial appointees, to fill open seats as a means of solidifying their political legacies. Judges, meanwhile, typically retire or step back to part-time service when a president of their own political party is in office to help ensure they will be replaced by someone with a similar political disposition.

Among the nation’s appellate courts, the 9th Circuit has become known as a particularly partisan battleground in recent decades, in part because its judges leaned so far to the left.

The court earned Trump’s ire for blocking policies of his administration — such as the ban on visitors and immigrants from mostly Muslim nations — and its rulings have been reversed in relatively large numbers by the U.S. Supreme Court, which Trump pushed to the right with his appointments.

Reshaping the 9th Circuit in a similar way has long been a goal of conservatives, and Trump’s success there was due not only to the help he received from Republicans in Congress but from some of the most staunchly liberal judges in the 9th Circuit’s history.

Circuit judges, who are appointed for life, free their seat for a president to replace them in one of three ways: They die, they quit, or they take “senior status” — which they are eligible to do only when their age and number of years on the bench are a combined total of 80 or more.

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Reinhardt, who was appointed by President Carter, could have taken senior status throughout the Obama administration, but instead died as an active judge from a heart attack in 2018 at the age of 87. In doing so, Reinhardt handed the power to appoint his successor to Trump — who chose to replace the “liberal lion” with Kenneth K. Lee, a conservative Los Angeles litigator.

Trump also replaced another liberal Carter appointee who held on to his seat well after he was eligible to take senior status.

When Judge Harry Pregerson decided to take senior status in late 2015, he was 92 and Obama was already nearing the end of his second term. Obama quickly put forward U.S. District Judge Lucy Koh to replace Pregerson, but by then it was too late.

It was already a presidential election year, when judicial nominations typically slow, and then-Senate Majority Leader Mitch McConnell, a Republican, blocked Koh’s nomination. Rather than Obama replacing Pregerson, Trump did so with Daniel Collins, a conservative former federal prosecutor.

Trump’s appointees sitting on three-judge panels have issued conservative rulings and dissents in a host of cases. Some of those rulings have been reversed by “en banc” panels that consist of 11 9th Circuit judges, although the conservative-leaning Supreme Court may take up those cases for their own review. Many observers are keeping a particularly close eye on a host of California gun control measures that Trump’s appointees to the 9th Circuit have already indicated an intent to overturn based on recent decisions by the Supreme Court.

In one example, Lee, authored an opinion in 2020 that invalidated California’s long-standing ban on high-capacity ammunition magazines. An en banc panel reversed that decision in 2021, upholding the ban. Then, last year, the Supreme Court vacated the en banc panel’s decision. The high court returned the case to the 9th Circuit for reconsideration in light of its decision in a New York case that broad limits on carrying firearms are unconstitutional if they are not analogous to similar restrictions from early American history.

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The en banc panel has since sent the case back to the lower District Court to be relitigated there.

The court’s 29 full-time active judges now consist of 16 appointed by Democrats and 13 by Republicans. Among the court’s senior judges, there are 13 appointed by Democrats and 10 by Republicans.

Some senior judges have stopped hearing cases, but the 9th Circuit will not identify them.

The full influence of Biden’s appointees is yet to be seen.

Biden’s first appointee to the court was Koh, the judge Obama had tried to appoint to Pregerson’s seat. A former federal prosecutor, California Superior Court judge and federal district judge known for her expertise in intellectual property law, Koh was the first Korean American woman appointed to a federal appellate court.

Judge Jennifer Sung formerly worked as an attorney representing labor organizations and employees. Judge Roopali Desai, the first South Asian person appointed to the court, is the daughter of Indian immigrants. She worked as a civil and voting rights attorney who successfully defended Arizona election officials against a Republican challenge to Biden’s 2020 election.

Judge Gabriel Sanchez is an L.A. native who handled class-action litigation by prisoners as a senior advisor to California Gov. Jerry Brown. He previously served as an associate justice in the California Court of Appeal’s 1st Appellate District. Judge Salvador Mendoza Jr. is a former prosecutor and defense attorney who was appointed by Obama as a federal district judge.

Judge Holly Thomas, a Black civil rights attorney, previously served in a leadership role within the California Department of Fair Employment and Housing.

Biden’s seventh appointee is expected to be Anthony Johnstone, whom the president has nominated to replace Sidney Thomas, a Clinton appointee who is taking senior status. Johnstone, a former clerk for Thomas, is a University of Montana law professor and former Montana solicitor.

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It is uncommon for younger judges to leave the bench before being eligible for senior status, but it does happen — and Biden’s eighth appointment to the 9th Circuit is expected to come as the result of such a departure.

This month, Judge Paul Watford, an Obama appointee who is just 55, announced to his colleagues that he would be stepping down and probably going into private practice.

The announcement shocked many in the legal field, who had until recently viewed Watford as a potential U.S. Supreme Court nominee.

Whether Biden will have the chance to appoint additional judges to the court will depend in part on the results of his reelection bid and the career decisions of the six judges who are eligible for part-time status — three of whom were appointed by Clinton, and three by President George W. Bush.

With Democrats in control of the Senate and primed to help the president, those judges’ seats could be filled during Biden’s first term if they were to step aside soon, Tobias said.

“It won’t take that long to get the people through,” he said. “That’s important, because we don’t know what will happen in 2024 — and three judges can make a big difference.”

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The three active judges appointed by Clinton who are eligible to take senior status are Ronald Gould, who is 76; Johnnie Rawlinson, who is 70; and Kim McLane Wardlaw, who is 68.

None responded to a request for comment.

Rawlinson told Reuters last year that she she could be “persuaded” to take senior status if it meant sustaining the “legacy” of former U.S. Senate Majority Leader Harry Reid of Nevada, where she is from, who had focused on diversifying Nevada’s bench. Rawlinson is Black.

The court’s three active Bush-appointed judges eligible to take senior status are Milan Smith Jr., who is 80; Consuelo Callahan, who is 72; and Sandra Ikuta, who is 68.

Smith told the Deseret News last year that he has no plans to retire and wishes to “die with my boots on.” Smith declined to comment to The Times.

Callahan also declined to comment about her plans or the balance of the court, saying it is not her practice to discuss “personal issues” or her colleagues with the press.

“I have been blessed to work with many wonderful judges appointed by many different presidents throughout my career,” she said.

Ikuta did not respond to a request for comment.

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