On February 12th, President Trump had his 189th, 190th, 191st, and 192nd judicial nominees confirmed by the senate. 51 of his judicial nominations have been for the federal appeals courts, and ten of those have been on the now-formerly heavy leftist 9th Circuit, where Trump has made 10 appointments in three years. He has effectively flipped the 9th circuit from wackjob leftist to sane, and this has wackjob leftists worried. Bigly.
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When President Trump ticks off his accomplishments since taking office, he frequently mentions his aggressive makeover of a key sector of the federal judiciary — the circuit courts of appeal, where he has appointed 51 judges to lifetime jobs in three years.
In few places has the effect been felt more powerfully than in the sprawling 9th Circuit, which covers California and eight other states. Because of Trump’s success in filling vacancies, the San Francisco-based circuit, long dominated by Democratic appointees, has suddenly shifted to the right, with an even more pronounced tilt expected in the years ahead.
Trump has now named 10 judges to the 9th Circuit — more than one-third of its active judges — compared with seven appointed by President Obama over eight years.
“Trump has effectively flipped the circuit,” said 9th Circuit Judge Milan D. Smith Jr., an appointee of President George W. Bush.
“Ten new people at once sends a shock wave through the system,” a 9th Circuit judge said.
Among those who have caused the most consternation is Judge Daniel P. Collins, a former federal prosecutor and partner of a prestigious law firm.
Some judges said that in the early months of his tenure, Collins has appeared oblivious to court tradition. He has sent memos at all times of the night in violation of a court rule and objected to other judges’ rulings in language that some colleagues found combative, they said.
Collins also moved quickly to challenge rulings by his new colleagues, calling for review of five decisions by three-judge panels, and some of the calls came before Collins even had been assigned to his first panel, judges said.
Democratic appointees still make up the majority of active judges — 16 to 13. But the court also has judges on “senior status” who continue to sit on panels that decide cases. Senior status rank gives judges more flexibility but allows them to continue to work, even full time.
Of the senior judges who will be deciding cases on “merits” panels — reading briefs and issuing rulings — 10 are Republicans and only three are Democratic appointees, Smith said.
“You will see a sea change in the 9th Circuit on day-to-day decisions,” Smith predicted.
The biggest change will come in controversial cases that test the constitutionality of laws and the legal ability of presidents to establish contentious new rules. The 9th Circuit is weighing challenges to Trump on a wide array of issues, from immigration to reproductive rights, and the rightward tilt is likely to make it easier for the president to prevail.
Though conservative, the Trump appointees to the 9th Circuit are not monolithic. Two Trump appointees — Bade, a former federal court magistrate, and Mark J. Bennett, a former attorney general of Hawaii — are regarded by their colleagues as experienced and collegial.
Trump appointee Eric D. Miller also has drawn positive reviews from both Democratic and Republican appointees. Before his appointment, Miller headed up the appellate division of a major law firm.
“I think he will be a good judge,” a 9th Circuit veteran said.
The 9th Circuit court has been dominated by Democratic appointees for decades. In 1978, a federal law created 10 new judgeships on the court, allowing President Carter to fill them all. The liberal Carter appointees were followed by judges named by three Republican presidents and two Democrats.
Clinton’s and Obama’s appointees were not uniformly liberal, however, and the 9th Circuit has been growing more moderate. One study, examining the years 2010 to 2015, found that the 9th Circuit was the third most reversed by the Supreme Court, following the Ohio-based 6th and Georgia-based 11th circuits.
Still, with Democratic nominees heavily outnumbering Republicans, there were usually enough votes to overturn conservative decisions by three-judge panels.
Smith predicted the full effect of the Trump appointees won’t be seen until 2021, when they will be carrying full caseloads.
But even now Democratic appointees are likely to be more reluctant to ask for 11-judge panels to review conservative decisions because the larger en banc panels, chosen randomly, might be dominated by Republicans, judges said.
Hold on, sitting judges are speaking to media, gossiping about other judges to the media? Turns out they are violating their own ethical standards by doing that!
Last September, “sources familiar with the private Supreme Court deliberations” talked to CNN about the Census Case. It was not clear who spoke to the media. Was it one or more Justices? Law clerks? Court staff? People who were in touch with the Justices or law clerks? These leaks were troubling. Confidential deliberations should remain confidential–especially when press reports paint some members of the Court in an unfavorable light. These disclosures corrode collegiality. Indeed, there have been new rounds of rumors about leaks in the Title VII SOGI cases.
This problem, regrettably, is not limited to the Supreme Court. On Saturday, Maura Dolan of the L.A. Times interviewed “several judges on the 9th Circuit” about the impact of President Trump’s new nominees. Dolan noted that “some” of the judges “declined to discuss their colleagues or inner deliberations.” That “some” should have been “all.” Why would any judges discuss their “colleagues” or opine on “internal deliberations”?
Alas, some judges “refused to be quoted by name, saying they were not authorized to speak about what goes on behind the scenes.” In other words they spoke on background, not for attribution. Judges cannot speak on background. Ever. Generally, when a source says, “I am not authorized to speak publicly,” that statement suggests that, given the proper authorization, she could speak publicly. But judges can never speak publicly about internal deliberations. No authorization can be given by any superior authority. Shame on those judges who spoke on background to the press.
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Reason specifically called out Judges Milan D. Smith and Kim McLane Wardlaw, who went on record with the media to complain about Trump’s appointees.
In less than three years as president, President Trump has done nearly as much to shape the courts as President Obama did in eight years.
Trump hasn’t simply given lots of lifetime appointments to lots of lawyers. He’s filled the bench with some of the smartest, and some of the most ideologically reliable, men and women to be found in the conservative movement. Long after Trump leaves office, these judges will shape American law — pushing it further and further to the right even if the voters soundly reject Trumpism in 2020.
It’s tempting to assume that Trump’s judicial appointees share the goonish incompetence of the man who placed them on the bench, but this assumption could not be more wrong. His picks include leading academics, Supreme Court litigators, and already prominent judges who now enjoy even more power within the judiciary.
There’s no completely objective way to measure legal ability, but a common metric used by legal employers to identify the most gifted lawyers is whether those lawyers secured a federal clerkship, including the most prestigious clerkships at the Supreme Court. Approximately 40 percent of Trump’s appellate nominees clerked for a Supreme Court justice, and about 80 percent clerked on a federal court of appeals. That compares to less than a quarter of Obama’s nominees who clerked on the Supreme Court, and less than half with a federal appellate clerkship.
In other words, based solely on objective legal credentials, the average Trump appointee has a far more impressive résumé than any past president’s nominees.
And they’re young, too. “The average age of circuit judges appointed by President Trump is less than 50 years old,” the Trump White House bragged in early November, “a full 10 years younger than the average age of President Obama’s circuit nominees.”
Trump’s nominees will serve for years or even decades after being appointed. Even if Democrats crush the 2020 elections and win majorities in both houses of Congress, these judges will have broad authority to sabotage the new president’s agenda.
In an age of legislative dysfunction, whoever controls the courts controls the country. In the past decade or so — or more precisely, since Republicans took over the House in 2011 — Congress has been barely functional. You can count on one hand — and possibly on just a few fingers — the major legislation it has enacted.
Judges, by contrast, have become the most consequential policymakers in the nation. They have gutted America’s campaign finance law and dismantled much of the Voting Rights Act. They have allowed states to deny health coverage to millions of Americans. They’ve held that religion can be wielded as a sword to cut away the rights of others. They’ve drastically watered down the federal ban on sexual harassment. And that barely scratches the surface.
The judiciary is where policy is made in the United States. And that policy is likely to be made by Republican judges for the foreseeable future.
And that’s not all. In the coming months, the courts are poised to gut abortion rights, eviscerate gun control, and neuter landmark environmental laws. Federal judges have already stripped workers of their ability to assert many of their rights against their employers, and this process is likely to accelerate in the near future. Many of our voting rights lay in tatters, thanks to conservative judicial appointments, and this process is likely to accelerate as well.
When Congress has been unable to function, the executive branch has relied on existing federal laws that delegate some policymaking authority to federal agencies, in order to deal with many of the nation’s pressing needs. But with the Supreme Court poised to give judges a veto power over these agencies’ actions, the courts could in effect strike down any regulation they dislike. In a Republican-controlled judiciary, this likely means that Republican administrations will retain broad discretionary authority, but Democratic administrations will be hobbled.
And here’s the thing: We probably will not fully understand just how much power Trump’s judges will wield until after Trump leaves office. Right now, the executive branch is ideologically aligned with Trump’s judges, so those judges are less likely to object to the Trump administration’s actions than more liberal jurists. But it’s a fairly safe bet that Trump’s judges would spend an Elizabeth Warren or Joe Biden administration wreaking havoc on the new president’s agenda — and that any future Democratic president will face similar opposition.
And that’s what scares the left the most. Trump’s judges are competent and qualified litigators who will be on benches for years opposing wacked out leftist policies. Since many laws are left vague on purpose by state legislators and US lawmakers, it’s left to the courts to interpret the laws.