Racing to remake the federal court in a way that pleases his conservative base, President Trump has confirmed 21 circuit judges, a big number.
And there’s nowhere has Trump been more intent on reshaping the bench than in the famously liberal Ninth Circuit, headquartered in San Francisco, whose judges he has taunted on Twitter, and who have blocked both his travel ban and his effort to withhold federal money from so-called sanctuary cities.
There are eight vacancies on the Ninth Circuit, counting one announced retirement effective in August, and court watchers say it’s telling that the White House has already teed up a nominee for a seat that isn’t yet available, prioritizing it over existing vacancies on other circuits.
There are 22 judges currently riding the Ninth Circuit. Add eight young, socially conservative judges vetted by the Federalist Society into lifetime seats and Trump will have bolstered the ideological makeup of the Ninth Circuit by a third, potentially shifting a raft of rulings important to cultural conservatives and to corporate America.
It’s rare when one party has such a glide path to putting its imprint on any circuit, let alone the nation’s third-largest one. Republicans need just 50 votes in the Senate to confirm Trump’s picks, and there’s every reason to assume that all his nominees will be confirmed — changing the nature of a Circuit that has long been an irritant to special interests aligned with Republicans and conservatives and large corporations, says Dan Goldberg, legal director with the liberal Alliance for Justice.
“It’s a strong pro-environmental circuit, so you’re seeing corporations wanting to eliminate protections for public lands and get more mining rights. They’ve spent the last 30 years attacking judges for enforcing environmental laws.”
Ryan Bounds, a 44-year-old federal prosecutor in Oregon, epitomizes both the type of person Trump seeks to install together and the precedent-shattering steps Republicans are taking to get him installed.
Bounds withheld from the Oregon Judicial Commission and from the Senate Judiciary committee writings that he did as a student at Stanford in the 1990’s where he “used incredibly demeaning terms to discuss multiculturalism. LGBT rights, diversity and survivors of sexual assault,” says Goldberg.
At his confirmation hearing on May 9th, Bounds apologized for the tone of his writings for the Stanford Review, but not for the substance. He had said that diversity policies at Stanford “aggravated” intolerance more than “many a Nazi book burning,” that multi-cultural organizations “divide up by race for their feel-good ethnic hoedowns,” and that expelling students is probably not going to contribute to a rape victim’s recovery.
Past their concerns about whether Bounds can apply the law fairly to people he expresses such contempt for, Democrats are rankled by how Republican Judiciary Chairman Chuck Grassley tossed aside a hundred years of senate tradition to grant Bounds a hearing when neither of his home-state senators returned what’s known as a blue slip to signal their approval of his nomination.
According to the Congressional Research Service, it is the first time that a nomination has ever proceeded without a blue slip from at least one home-state senator. When President Obama was in the White House, Grassley was meticulous about denying a hearing to any Obama nominee that didn’t have the support of both home-state senators, creating the backlog of vacancies that Trump is now rushing to fill.
Trump calls the vacancies a “gift” from Obama, claiming falsely that his predecessor’s complacency created the backlog, rather than GOP obstruction.
Whether the blue slip tradition is on the way to the bipartisan graveyard will be tested in the coming weeks as California Senators Dianne Feinstein and Kamala Harris work with the White House to come up with nominees they could support to fill three Ninth Circuit vacancies. Feinstein said in a statement they were negotiating in good faith trying to find consensus picks, and that they expect Grassley will support their efforts.
“It will be a big test, whether the White House negotiations go forth or it’s another Pennsylvania and Oregon,” says Goldberg. The White House stiffed the Oregon senators, and in Pennsylvania, after Democrat Bob Casey signed off on a consensus name, the White House chose the one person Casey said he could not support for the Third Circuit, David Porter, an attorney closely associated with former senator and conservative presidential candidate Rick Santorum.
“There are lots of Republican conservatives out there who would read briefs and apply the law, and that’s not who’s been nominated,” says Goldberg. “They don’t want neutral unbiased judges who respect the facts. They want true believers who will advance an agenda.”