Trump unlikely to pick many 9th Circuit judges in 2nd term

Judges appointed by Democratic presidents have held a majority on the 9th U.S. Circuit Court of Appeals since 1998, cementing its reputation as a liberal court that Republicans have often argued should be split up.

The election of President-elect Donald Trump will give him another opportunity to add to his 10 appointees on the San Francisco-based court, with the assistance of a Republican-controlled Senate that took office Friday.

He moved the court decidedly to the right during his first term, replacing liberal stalwarts like 9th Circuit Judges Stephen R. Reinhardt and Harry Pregerson - both named to the court by President Jimmy Carter - with Judges Kenneth K. Lee and Daniel P. Collins, respectively.

By the end of Trump's first term, the 9th Circuit was closely divided, with 16 judges picked by Democratic presidents and 13 named by Republicans. Biden didn't change the partisan breakdown of the court, because while he appointed eight judges to the circuit, they replaced six appointees of President Bill Clinton and two appointees of President Barack Obama.

But a prominent observer of the 9th Circuit does not expect the president-elect to be able to flip the court during the next four years. "I am quite confident that will not happen during Trump's presidency," said Arthur D. Hellman, professor emeritus at the University of Pittsburgh School of Law.

It would not take many vacancies - just two among Democratic appointees, three of whom are in their 70s - or a law that would allow Trump to add judges to the 29-member circuit -- for Republican appointees to gain control for the first time in more than a quarter century.

President Bill Clinton - who named a record 14 judges to the 9th Circuit, still has three active appointees on the court: Judge Ronald M. Gould, 78; Judge Johnnie B. Rawlinson, 72; and Judge Kim McLane Wardlaw, 70.

Legal experts say they do not expect Trump to add nearly as many judges during his upcoming term as in his first, mainly because there will not be as many positions to fill. Democratic appointees on the court are expected to remain on active status, health permitting, and all but one of Trump's appointees from his first term are between 46 and 62.

The lone Trump appointee on the court who is older than that is 9th Circuit Judge Mark J. Bennett, who is 74.

Two possible candidates to take senior status during Trump's term are two of President George W. Bush's appointees: Judge Consuelo M. Callahan, 74; and Judge Sandra S. Ikuta, 70.

One wild card is Judge Milan D. Smith Jr., who at 82 is the oldest, active member of the court and a moderate conservative. In a June 2022 interview with the Deseret News, the Bush appointee expressed displeasure with both political parties, adding that he had no plans to retire.

Smith declined an interview with the Daily Journal on Thursday.

Hellman said he does not expect that any Republican effort to add circuit judge positions could survive a Democratic filibuster. He also did not think another possible strategy - having the Senate parliamentarian rule that it could pass with 50 votes under reconciliation - was likely either.

"I say with some high level of confidence that Republicans are not going to abandon the filibuster and certainly not to add a few judges," he said in a phone interview.

But even if Democratic appointees retain a majority on the court, they approach their job cautiously on many issues, because the U.S. Supreme Court - dominated by Republican appointees - looms above them and can reverse their rulings.

All 29 active judges vote on whether to review a three-judge panel's decision, giving Democratic appointees an advantage at that stage. But only 11 judges sit on a limited en banc panel, chosen by lot - with the exception of Chief Judge Mary H. Murguia, an appointee of President Barack Obama.

Liberals aim to "do no harm," preserving the existing law of the circuit, Hellman said, and are sometimes reticent to vote for limited en banc review, even of panel decisions they do not like, to avoid the possibility that the en banc panel - which could turn out to be more conservative, given the luck of the draw - might overturn longstanding precedent.

"A three-judge panel can't overrule prior panel decisions," he added. "A limited en banc panel can. It's a complicated dynamic but it's a very important part of en banc balloting."

Conservative judges, meanwhile, focus on the U.S. Supreme Court, often calling attention to 9th Circuit decisions it views as wrongheaded. Every active Republican-appointed judge dissented from the appellate court's decision by Democratic appointees not to reconsider a ruling that the city of Grants Pass, Oregon's statute barring homeless people from sleeping or camping outside was unconstitutional.

The Supreme Court agreed to review the case and ruled for the city in a major decision last June. City of Grants Pass, Oregon v. Johnson, 2024 DJDAR 6000 (S. Ct., filed Aug. 22, 2023).

Liberals are more aggressive on Second Amendment cases, which are having to be decided again in the wake of a 2022 U.S. Supreme Court decision that adopted a new "history and tradition" standard for evaluating gun laws. New York State Rifle & Pistol Association v. Bruen, 2022 DJDAR 6325 (S. Ct., filed Dec. 17, 2020).

Bruen is a new precedent, requiring new decisions by lower courts. But Democratic appointees have presented a united front thus far on Second Amendment cases, voting to uphold California's gun laws, while Republican appointees have sometimes been divided depending on the case.

It is widely expected that many challenges to Trump policies and executive orders will be filed in district courts in California, which are dominated by Democratic appointees. Active judges in the Northern District of California, for example, have all been appointed by Democratic presidents, and all but one senior judge has been as well.

Appeals of decisions in those cases will wind their way to the 9th Circuit and its narrowly liberal majority.