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Essential Politics: Courting trouble on the 9th Circuit

A man stands outside the 9th U.S. Circuit Court of Appeals building in San Francisco.
A man stands outside the 9th U.S. Circuit Court of Appeals building in San Francisco.
(Marcio Jose Sanchez / Associated Press)

President Trump governed mostly by issuing executive orders, many of which President-elect Joe Biden is expected to jettison. He also didn’t win many legislative victories beyond his 2017 push to reform the tax code.

But when he leaves the Oval Office for the final time on Jan. 20, Trump will be able to point to at least one legacy that will be exceedingly difficult to unwind: the courts. Trump has won confirmation of three Supreme Court justices, tilting the nation’s highest court in a conservative direction. And he has appointed more than 25% of the more than 800 judges sitting on trial and appeals courts.

My colleague Maura Dolan has written extensively on how Trump has succeeded in shaping the U.S. 9th Circuit Court of Appeals — the sprawling federal court system that covers much of the West and has been dominated by Democratic appointees. As of February, Trump had appointed more than a third of the active judges on the circuit, dramatically shifting it to the right in what one judge called a “shock wave.”

Judges often prefer to retire when a president of the party that nominated them is in office, ensuring they are replaced by someone with a similar ideology. Aging liberal judges on the circuit have been waiting for years to step down, so their seats could be filled by a Democratic president. That time would seem to be now — except Biden is going to face serious challenges in trying to fill those seats.

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To go senior or wait?

Trump’s 9th Circuit decisions were met with reservations from veteran judges, Dolan wrote earlier this year. While some hoped the court might remain collegial, others were dismayed — enough to postpone retiring, lest they give Trump an opportunity to appoint more judges.

This week, Dolan looks at how that backlog of retirements has piled up, leaving Biden with a formidable challenge ahead. In the 9th Circuit, at least nine Clinton-era appointments have reached the end of their careers.

Federal judgeships are lifetime appointments. But when a judge reaches a certain age and length of service, they can scale back their workload. This is called taking “senior status.” When that happens, the president can appoint a successor. As some judges tell Dolan, veterans had made a calculation during the Trump era: wait and hope for a different president in 2021.

But while Biden did win the White House, Democrats failed to secure a Senate majority. Their ability to approve Biden’s judicial picks may hinge on the results of the Georgia runoff where two seats are up for grabs. A Senate controlled by Republicans means Biden will have a tough time getting judges confirmed. If Democrats win both races and gain control of a 50-50 Senate (Vice President Kamala Harris would control the tie-breaking vote), Biden’s political calculus remains complicated because he has zero margin for error.

[Read the story: “Some federal judges plan to retire when Trump exits. Will Biden be able to replace them?”]

“Everything about the judicial nomination process has become politicized in an unprecedented way,” Erwin Chemerinsky, dean of UC Berkeley’s law school, told Dolan. “And it is hard to think about any of these questions except from the political perspective.”

Legal experts point to President Obama’s tenure as a turning point and a harbinger: a Democratic president at odds with a Republican Senate headed by Majority Leader Mitch McConnell. It wasn’t only Merrick Garland‘s nomination to the Supreme Court that Republicans thwarted. Dolan notes that Trump inherited 100 empty judiciary seats.

McConnell has already said he won’t entertain Cabinet picks deemed too liberal, and he is sure to follow a similar line of argument about judges.

So what happens next?

It may depend on Biden’s approach to his nominees. If his early Cabinet picks are any indication, he’s a fan of “Goldilocks” nominees, Evan Halper wrote last week — not too left, not too right, the kind of crowd-pleasers with a shot at approval.

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The latest on the transition

— On Thanksgiving Day, Trump said he would leave the White House if the electoral college formalizes Biden’s win. Days later, he appeared on Fox News and acknowledged his groundless claims of election fraud were “hard to get into” the Supreme Court, Laura King writes.

— A new week, a new round of Biden Cabinet nominations. Biden filled out his senior economics team and confirmed his long-rumored nomination of Janet Yellen to lead the Treasury Department. He also may have drawn his first pushback from Republicans in nominating Neera Tanden to lead the Office of Management and Budget.

— Atty. Gen. William Barr said Tuesday that the Justice Department has not uncovered evidence of widespread voter fraud that would change the outcome of the 2020 presidential election. Barr also said he had appointed U.S. Atty. John Durham as a special counsel in October to continue investigating the origins of the Trump-Russia probe.

— A court document unsealed Tuesday shows the Justice Department is investigating whether there was a secret scheme to lobby White House officials for a pardon as well as a related plot to offer a political contribution in exchange for clemency.

The view from Washington

— Speaking of the courts: President Trump’s plan to exclude millions of immigrants who are in the country illegally from the 2020 census count appeared to fizzle during oral arguments at the Supreme Court on Monday, David G. Savage writes.

— Democrats hoped to win big in 2020. But in the face of unexpected congressional losses, they’re now in the process of recalibrating their expectations on a wide variety of issues, such as immigration, healthcare and climate change, Jennifer Haberkorn reports.

The view from California

— Los Angeles Mayor Eric Garcetti has downplayed rumors he might leave for a position in the Biden administration. A group of activists and protestors say he shouldn’t be considered at all, arguing his record on transportation, homelessness and policing is poor.

— California has received more than $1.3 billion in federal aid to rebuild after the 2017 wine country wildfires, the 2018 Camp fire in Butte County and others. But disaster-affected homeowners and renters have yet to receive a single penny after years-long federal and state bureaucratic delays.

— Among Southern Californians with roots in Taiwan, there is a strong vein of support for Trump — they like his tough rhetoric on China. Can Biden win them over?

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