“It’s an incredible opportunity,” University of Richmond law professor Carl Tobias said.
“There are 29 active judge-ships on that court.
[Trump] can fill 1/4 of them.
That to me could, depending on who they are, how quickly they go, whether they are rejected, change the complexion of the court, and it could change substantially.”
Perhaps someone showed him the image below.
Reinhardt, deemed a “liberal lion,” died unexpectedly of a heart attack while at the dermatologist’s office Thursday, the court said.
Appointed by President Jimmy Carter in 1979, Reinhardt joined the court after Congress expanded the number of judges on the 9th Circuit by 10, a change many believe contributed substantially to the current ideological bent of the court.
See the entire article below.
Those new seats were filled by Carter, which has led those 9th Circuit judges to take senior status, a form of semi-retirement, under Democratic presidents. When a judge takes senior status, he or she maintains a reduced caseload, but the president can nominate and the Senate can confirm a replacement.
Trump has named two nominees, Mark Bennett and Ryan Bounds, to fill two of the seven vacancies. The White House did not return a request for comment regarding future nominations to the court.
For Josh Blackman, a law professor at the South Texas College of Law, the shift in the 9th Circuit’s ideology may not b as stark once Trump moves to fill the vacancies.
The president, he said, can make the court “less bad.”
“At this point, it’s virtually impossible in the 9th Circuit to draw a panel with two Republican-appointed judges. It’s possible, but it’s tough,” Blackman said, referring to the panel of three judges who hear appeals court cases. “This might make it more possible to draw a panel [of two Republican appointed judges] every now and then.
Ilya Shapiro, a senior fellow in constitutional studies at the libertarian Cato Institute, also seemed skeptical of a full ideological change in the court.
“Even if he managed to fill all seven vacancies, which is highly unlikely, there will still be a 16-13 tilt,” he said, comparing the number of judges appointed by Democratic presidents with those appointed by Republican presidents.
A challenge for Trump in the 9th Circuit is the number of states in its jurisdiction with two Democratic senators. The court covers Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, the Northern Mariana Islands, Oregon, and Washington state.
A home state senator historically has been able to block a judicial nominee by deciding not to return a blue slip of paper to the chairman of the Senate Judiciary Committee under the “blue slip” tradition.
“With many states in the 9th Circuit having two Democratic senators, it makes it tricky to get through committee with the way the parliamentary games are played in the Senate,” Shapiro said.
The blue slip tradition has been honored differently by past chairmen of the Senate Judiciary Committee, and Sen. Chuck Grassley, R-Iowa, the current chairman, has held committee hearings and votes on two judicial nominees despite unreturned blue slips.
“If you look at where the vacancies are, it’s not as easy as it might look,” Tobias said.
Three of the seven vacancies on the 9th Circuit, for example, are in California, which has two Democratic senators, Sen. Dianne Feinstein, D-Calif., the Senate Judiciary Committee’s top Democrat, and Sen. Kamala Harris, D-Calif., a member of the committee and a possible presidential candidate in 2020.
Already, Feinstein has indicated Trump may face a difficult path if he were to nominate conservative judges to the 9th Circuit.
“It’s no secret that President Trump and Republicans want to reshape the 9th Circuit and we will not accept unwarranted, partisan attacks on our courts,” she said in a statement on Reinhardt’s death. “I am fully committed to ensuring that 9th Circuit nominees reflect our state’s communities and values and are well-regarded by their local bench and bar.”
Trump has already run into trouble from Oregon’s two Democratic senators, Sen. Ron Wyden, D-Ore., and Jeff Merkley, D-Ore., over Bounds’ nomination.
The two came out in opposition to Bounds’ selection after writings in the Stanford Review, a student newspaper at Stanford University, about sexual assault and the LGBTQ community surfaced.
Shapiro said he expects Trump’s other nominee to the 9th Circuit, Bennett, to be uncontroversial.
Despite the challenges Trump may face with 9th Circuit nominees, he had a record number of judges confirmed to the appeals courts in his first year in office.
The Senate last year confirmed 12 of Trump’s nominees, in addition to Justice Neil Gorsuch to the U.S. Supreme Court and has confirmed two more appeals court judges this year.
But Republicans have complained about the slow pace of judicial confirmations due to what they, and the president, consider to be obstructionist tactics by their colleagues on the other side of the aisle.
Democrats, for example, have required 30 hours of post-cloture debate to pass before proceeding to a final vote on a nominee.
Tobias warned that those tactics, combined with the upcoming midterm elections, could exacerbate the challenges for Trump with judicial confirmations, particularly if Democrats win control of the Senate in November.
“I think they’re all mad right now. You see it. They demand cloture on every nominee. The committee votes on party lines if it’s a controversial person,” Tobias said. “Both sides are ready to fight, but I think the Democrats feel what happened the last two years of Obama, they’re not done with payback yet. If they take the Senate again, I think they feel they’ve been mistreated. I don’t know how it will go, but I don’t think it’ll go well.”