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President Trump May Be About To Flip The Ninth Circuit

One area in which the election of Donald Trump has paid off in spades is that of judicial appointments. So far, the president has had two Supreme Court appointments and numerous picks for lower courts. Now, a series of appointments may be about to remake one of the most liberal federal courts in the country, the Ninth Circuit.

The Ninth Circuit Court of Appeals has the jurisdiction for the states of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington as well as the territories of Guam and the Mariana Islands.  The Ninth Circuit is infamous among conservatives for its controversial decisions and being one of the most overturned courts in the country by the Supreme Court.  

Yesterday, the White House announced the appointment of seven new judges. Three of these new judges are destined for the Ninth Circuit while the other four will go to the US District Court for the Central District of California.

Two of the new nominees to the Ninth Circuit, Daniel P. Collins and Kenneth Kiyul Lee, were appointed last year and blocked by Democrats. The third appointee is Daniel A. Bress, who is being nominated to a federal judgeship for the first time. All three appointees are considered to be experienced constitutionalists.

The third appointee from last year, Patrick J. Bumatay, was shifted to the California Central District along with Stanley Blumenfeld, Jeremy B. Rosen, and Mark C. Scarsi. Bumatay is an openly gay Filipino-American whose appointment drew fire from California Democrats Dianne Feinstein and Kamala Harris. His renomination to a lower court represents a small concession to his opposition.  

The appointments came after numerous conservative outlets had criticized the president for slow-walking appointments to the Ninth Circuit. Earlier this month, President Trump renominated 51 appointees from last year but the Ninth Circuit nominees were absent from the least, fueling speculation that the president had made a deal with Sen. Feinstein.

The Ninth Circuit currently has six vacancies. If the three appointees are confirmed by the Senate, the balance of the court will be 13 Republican-appointed and 16 Democrat-appointed judges. Although judges do not always rule in accordance with the wishes of their party, more Republican-appointed judges would bring balance to a court that is considered extreme and temper some of its rulings.

It is possible that two more appointments to the court could give conservatives a majority on the Ninth Circuit. This does not mean that all cases coming through the Ninth Circuit would be heard by a conservative majority, however. Some cases are heard by a single judge or a three-judge panel. Others are heard by an en banc court, which usually means that all judges hear the case. Due to the large size of the Ninth Circuit, however, en banc cases are heard by a panel of 11 randomly selected judges, which could give Democrats a majority.

The current crop of appointments still has to be confirmed by the Senate, however. Democrats removed the filibuster for appeals and district court nominees in 2013, but there are still ways to slow the confirmation process. Last year, Democrats insisted on 30 hours of floor debate and withholding blue slips, approval of judicial appointees by their home state senators. In 2018, Chuck Grassley, the Republican chairman of the Senate Judiciary Committee broke tradition by holding hearings for appointees that did not have a blue slip from either of their state’s senators. This makes it more difficult for the opposition party to block nominees.

Much of Donald Trump’s presidency has been a mixed bag for conservatives, but, giving credit where credit is due, his judicial appointments have shifted the balance of the federal judiciary back toward the Constitution and the rule of law. That will be a legacy that lasts long beyond President Trump’s tenure and it is a very good thing for the country.

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