Trump Has 'Effectively Flipped' the 9th Circuit from Liberal to Conservative

Michael Foust | Contributor | Monday, March 9, 2020
Trump Has 'Effectively Flipped' the 9th Circuit from Liberal to Conservative

Trump Has 'Effectively Flipped' the 9th Circuit from Liberal to Conservative

President Trump has essentially “flipped” the once-liberal U.S. Ninth Circuit Court of Appeals to a mostly conservative body thanks to appointments that received quick approval in the friendly Republican-led Senate, according to experts and judges within the circuit. 

When Trump took office, the Ninth Circuit – long a thorn in the side of conservatives – was comprised of 18 judges nominated by Democrats and seven by Republicans, with four vacancies.  Trump has appointed 10 judges to the circuit, helping trim the Democratic advantage from 18-7 to 16-13.

Although Democrats technically still have the edge, the circuit’s unique rules help make it a GOP advantage in many instances. That’s because the circuit randomly picks judges for its three-judge panels and 11-judge “en banc” panels.

“Trump has effectively flipped the circuit,” Ninth Circuit Judge Milan D. Smith Jr., who was appointed by President George W. Bush, told the Los Angeles Times.

For example, when the Ninth Circuit heard a case about a new Trump administration rule withholding certain funds to abortion clinics, seven of the 11 judges on the panel were nominated by Republicans. (The court upheld the rule.) 

“Ten new people at once sends a shock wave through the system,” an unidentified Ninth Circuit judge told the Times.

The Ninth Circuit covers California and eight other states. All total, about 60 million people reside in the Ninth Circuit’s region. 

The court developed a liberal reputation in the late 1970s, when Congress expanded the circuit by 10 seats and allowed Democratic President Jimmy Carter to fill each one. One of those judges, Harry Pregerson, famously told senators during his confirmation, “If I had to follow my conscience or the law, I would follow my conscience.” 

Meanwhile, six of President Trump’s appointments to the Ninth Circuit are under 40 and could serve for decades. 

“They are incredibly young,” Carl Tobias, law professor at the University of Richmond School of Law, told NPR’s On Point.

Tobias said “it’s too early to tell” what impact Trump’s appointments will make to the Ninth Circuit, although “over time, it is likely to make a pretty substantial difference.”

Andrew Kragie, congress and judicial nominations reporter for Law360, agreed.

“When I talk with practitioners and professors and senators, they all agree that the Ninth Circuit is definitely changing,” Kragie said.


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Photo courtesy: ©Getty Images/Chip Somodevilla/Staff

Michael Foust has covered the intersection of faith and news for 20 years. His stories have appeared in Baptist Press, Christianity Today, The Christian Post, the Leaf-Chroniclethe Toronto Star and the Knoxville News-Sentinel.

Trump Has 'Effectively Flipped' the 9th Circuit from Liberal to Conservative