There’s been a noticeable exception to President Trump’s otherwise successful effort to appoint young, conservative judges to the nation’s appellate courts: the liberal-leaning U.S. 9th Circuit, which has jurisdiction over California and eight other Western states.
Since Trump took office, the Senate has confirmed only one 9th Circuit judge — in Hawaii — leaving seven openings. A nominee in Oregon was abruptly withdrawn last month when it became clear he lacked the votes for Senate approval.
And Trump has yet to even nominate anyone for the three vacancies in California, partly because of a standoff with Democratic Sens. Dianne Feinstein and Kamala Harris.
That’s a stark contrast to Trump’s record on appointments of appeals court judges elsewhere in the country. The Senate has confirmed a record 26 new circuit court judges nationwide in 20 months — including two approved on Thursday.
Now, however, there are signs that the administration is beginning to set its sights on the 9th Circuit, likely triggering a bruising fight with Democrats.
The strongest indication came in a recent fight over the nomination of Ryan W. Bounds to a 9th Circuit vacancy in Oregon.
Oregon’s two Democratic senators, Ron Wyden and Jeff Merkley, opposed Bounds and refused to issue their so-called blue slips, a century-old courtesy in which senators are asked to sign off on nominees from their home state.
In the past, rejection by both home state senators was enough to effectively kill a nomination. But for the first time, Judiciary Committee Chairman Charles E. Grassley (R-Iowa) brushed off the home senators’ views and moved forward without their approval.
Bounds’ nomination ultimately failed because some of his old racially charged writings raised doubts among enough senators, including at least one Republican, that the White House withdrew his nomination.
But the precedent of breaking with the blue-slip tradition showed that Trump and the Republican-led Senate were ready to adopt a tougher stance, which has deep implications for the 9th Circuit. Four of the nine states the circuit covers have two Democratic senators.
Why the administration and Senate leadership are hardening their approach now is unclear. One possibility, however, is that Trump is simply running out of vacancies in other circuits.
“They’ve been focusing on lower-hanging fruit,” said Ilya Shapiro, a senior fellow in constitutional studies at the Cato Institute. “After a while, there are only so many seats to fill.”
About two-thirds of the 12 appeals court vacancies remaining nationwide are on the 9th Circuit.
Two administration nominees to the 9th Circuit have moved through the process without much controversy. Idaho’s Republican senators support Trump nominee Ryan D. Nelson, and he is expected to win confirmation later this year.
Hawaii’s two Democratic senators enthusiastically backed Trump nominee Judge Mark J. Bennett as a consensus pick who had already been vetted by their review committees. He was approved in July by a 72-27 vote.
But filling the rest of the vacancies will not be so easy.
Trump nominated appellate attorney Eric D. Miller of Washington, though he was not recommended by the review committee created by the state’s senators, Democrats Patty Murray and Maria Cantwell. Murray says she’s reserving judgment on Miller, but Cantwell’s office immediately signaled another potential fight ahead, telling the Seattle Times that “the senator did not and does not consent to Eric Miller’s nomination.”
In Arizona, where Trump doesn’t get along with either Republican senator, he’s held off on appointments, as well.
In California, talks between the administration and the state’s senators appear to have stalled.
The White House floated some potential names, which the senators’ review committees have examined. In early May, Harris and Feinstein recommended three potential judges to the White House. Neither side would say if there was any overlap between the two groups, but the lack of any nomination suggests there was not.
A White House official said the president intended to fill the 9th Circuit vacancies with more conservatives, but would not provide any timeline.
The recent focus on completing the confirmation of Judge Brett Kavanaugh to the Supreme Court could be delaying action in the 9th Circuit, though it hasn’t stopped the Senate from voting on other judicial nominees.
Feinstein said in a statement that the White House and the two senators were working to come to consensus.
Reshaping the 9th Circuit has long been a conservative goal, one that the Trump administration has plenty of incentive to pursue. Since Trump’s inauguration, 9th Circuit judges have ruled that he couldn't legally bar tens of thousands of visitors and immigrants from several mostly Muslim nations from entering the country (a decision the Supreme Court overturned). They’ve also forced him to continue processing renewal applications of immigrants previously approved for the Deferred Action for Childhood Arrivals program, which Trump ended.
Given the history, “I thought they would have moved more aggressively,” San Francisco appellate attorney Ben Feuer said.
Though Trump is within striking distance of flipping some circuits from a majority of Democratic appointees to a majority of Republican appointees, the best he can hope for so far in the 9th would be increasing the conservative presence on the court.
Before Trump took office, the 9th Circuit had 20 Democratic and nine Republican appointees. If Trump filled all the current openings with conservatives, the balance would be 16 Democratic appointees to 13 Republican appointees.
Trump’s best chance to reshape the 9th Circuit would come from filling two vacant California seats once held by liberal lions: Judge Harry Pregerson, who took a reduced workload in 2015 and died in late 2017, and Judge Stephen Reinhardt, who died unexpectedly in March. Both were President Carter appointees and were considered among the most left-leaning judges in the country.
Judge Alex Kozinski, a conservative on most issues, who was appointed by President Reagan, retired in December amid accusations of sexual misconduct, creating a third California vacancy.
Feinstein, the ranking Democrat on the Senate Judiciary Committee, is livid about Republicans’ willingness to move forward without the blue slips and has warned them publicly against proposing nominees in California that she and Harris don’t support.
“It’s no secret that President Trump and Republicans want to reshape the 9th Circuit and we will not accept unwarranted, partisan attacks on our courts,” Feinstein said in March. “I am fully committed to ensuring that 9th Circuit nominees reflect our state’s communities and values and are well-regarded by their local bench and bar.”