President Trump has had ample opportunity to begin transforming his judicial nemesis: a federal appeals court out West that has stymied some of his most ambitious and controversial proposals.
So far, he hasn’t seized it.
The powerful U.S. Court of Appeals for the 9th Circuit has long been a target for conservatives who argue it is a liberal power center out of step with the rest of the country. It now has eight vacancies, giving Trump the ability to reshape the court. But the White House has put forward only two picks for the open slots — neither of which has been confirmed.
In a presidency that has been marked by Trump’s notable successes in transforming the federal judiciary — 15 circuit judges have already been installed under Trump, and the Senate is poised to soon confirm up to six more — the famously liberal 9th Circuit stands out as a glaring exception. It’s all the more striking considering that the appeals court has repeatedly been the target of Trump’s Twitter ire, particularly after it issued rulings unfavorable to the administration, including on the travel ban and a crackdown on sanctuary cities.
Conservative groups pleased with Trump’s judicial picks overall have so far given him a pass for not moving more quickly to reshape the 9th Circuit, laying the slowdown at the feet of Democrats.
“He tries to give them every benefit of the doubt in working with them,” said Carrie Severino, the chief counsel of the conservative Judicial Crisis Network. “You can only go so quickly, in general.”
But others note that Trump could do more, especially given how much he has complained about the rulings coming out of the 9th.
“There’s a lot of things where his involvement has been limited to tweets,” said Ilya Shapiro, a senior fellow at the Cato Institute who has offered input to the White House on potential nominees. “He has more power than that, believe it or not, that he hasn’t taken advantage of.”
The administration has prioritized filling vacancies in other, more conservative courts, probably because they are easier: Those states often have two Republican senators who can quickly sign off on Trump’s picks so the White House can nominate them. In the 9th Circuit, multiple states with court vacancies have a pair of Democrats, which raises the chances for partisan standoffs over changes to the judiciary.
Trump, as well as Senate Majority Leader Mitch McConnell (R-Ky.), needs minimal support from Democrats to confirm judges. But there has been a long-standing tradition of consultation between a White House and home-state senators in picking judicial nominees — a practice Democrats have complained is eroding under the president.
The dynamic is especially acute in California, which boasts three of the 9th Circuit vacancies. The state’s senior senator, Dianne Feinstein, is ranking Democrat on the Senate Judiciary Committee, which processes all candidates for the courts, and Sen. Kamala D. Harris (D-Calif.), who also sits on the panel, has established herself as a leader of the liberal resistance against Trump initiatives and nominees.
The White House sent five potential names for a 9th Circuit vacancy in July to Feinstein and Harris for their review, an administration official said. Two more slots have opened up since then: Judge Alex Kozinski stepped down in December amid accusations of sexual misconduct, and Judge Stephen Reinhardt, a liberal fixture of the court, died in March.
The two senators, in turn, worked on their own recommendations and sent them to the White House on Friday. One person familiar with the effort said the people suggested by the White House last year have been interviewed as part of the senators’ nomination process.
Feinstein has already warned the White House against nominating conservatives over her and Harris’s objections, telling Vice President Pence and White House Counsel Donald McGahn during a January 2017 meeting that she would continue to rely on a bipartisan nominating commission in California for vacancies in her state.
“As I’ve said previously, nominees for the Ninth Circuit in California must reflect our state and its values. They must also have the respect of the local bench and bar in their communities,” Feinstein said in a statement. “As this process moves forward, I expect to continue a dialogue with the White House Counsel’s Office to come to consensus on choices Senator Harris and I will sign off on.”
Aside from the three vacancies in California, the 9th Circuit has one opening each in Washington, Arizona, Oregon and Hawaii. The White House has put forward nominees for the latter two states.
The eighth vacancy, in Idaho, will take effect in August.
Trump’s existing picks for the court signal two strategies the White House could take in filling the vacancies: Cooperate with Democrats from the start for a consensus pick, or override their protests to install judges who enthrall the right.
One nominee is Mark Bennett, a former Hawaii attorney general recommended by his Democratic senators, Brian Schatz and Mazie Hirono, according to his questionnaire submitted to the Senate Judiciary Committee. Schatz had nothing but praise for the White House’s process: “This is how it’s supposed to work,” he said, noting it was collaborative from the start.
But in Oregon, the White House has picked a young conservative lawyer named Ryan Bounds, who is scheduled to get his confirmation hearing on Wednesday despite the strenuous objections of both of his home-state Democratic senators, Ron Wyden and Jeff Merkley. Neither have returned their “blue slip” for Bounds, a century-old tradition in the Senate that has generally given a home-state senator veto power over a judicial nominee by not allowing a confirmation hearing to occur.
Bounds was recommended primarily by Rep. Greg Walden, the sole Republican in the Oregon delegation whose chief of staff is the nominee’s sister. Merkley said the White House merely informed the two senators that Trump was picking Bounds — a process Merkley called “horrendous” — although Republicans have maintained that Merkley and Wyden were adequately consulted.
“This hearing is a big deal because it should be a wake-up call for all Democratic senators that this administration is not going to defer to them,” said Christopher Kang, who worked on judicial nominations as deputy counsel in the Obama White House.
It’s unclear whether the White House plans to send more names to Feinstein and Harris for the California vacancies or when more nominations to the appeals court will be announced.
Far less ambiguous is how Trump personally feels about the 9th Circuit.
He railed against it in April 2017 after a district judge temporarily halted an early executive order that would have choked off funding for “sanctuary cities,” which limit their cooperation with federal immigration enforcement officials. Already thwarted by the courts on his travel ban, Trump tweeted the rulings were “ridiculous” and proclaimed: “See you in the Supreme Court!”
When a three-judge 9th Circuit panel upheld an injunction blocking parts of his travel ban later that June, Trump again took to Twitter: “Well, as predicted, the 9th Circuit did it again — Ruled against the TRAVEL BAN at such a dangerous time in the history of our country. S.C.”
Trump was disappointed in the 9th Circuit again this year.
“It just shows everyone how broken and unfair our Court System is when the opposing side in a case (such as DACA) always runs to the 9th Circuit and almost always wins before being reversed by higher courts,” he tweeted in January.
There are looming clashes in other appeals courts between the administration and Democratic senators. In the Philadelphia-based 3rd Circuit, the White House has nominated Pittsburgh lawyer David Porter, despite objections from Sen. Robert P. Casey Jr. (D-Pa.).
Trump has also picked Paul Matey, who served as deputy chief counsel under former New Jersey governor Chris Christie, for another slot in the 3rd Circuit — a nomination that has prompted concerns from one of his senators, Cory Booker (D-N.J.). Of the 15 appellate judges confirmed so far under Trump, six are conservatives who replaced jurists who had been nominated by Democratic presidents. Several of the 15 were included in his shortlist of Supreme Court nominees during the presidential campaign, including Allison Eid, now at the 10th Circuit; 6th Circuit Judge Joan Larsen and David Stras, who was confirmed to the 8th Circuit this year.
Yet few initiatives have united Senate Republicans and Trump more than their shared ambition to remake the courts. McConnell said on conservative radio host Hugh Hewitt’s show last week that he plans to confirm all judicial nominees who clear the committee by the end of the year — a particularly vital task for Republicans if they lose their Senate majority this November.
McConnell has helped the president install a dozen circuit court judges in the first year of his presidency — a record for any president in his first 12 months. The Senate has greenlighted three more in Trump’s second year, and McConnell has laid the procedural groundwork to confirm six more in the coming days.
“We’re trying to move through it as fast as we can,” Sen. Jeff Flake (R-Ariz.), a critic of Trump who supports the president’s push to install more conservative judges, said of 9th Circuit openings. “There are a lot of vacancies.”