A judicial aftershock following the Donald J. Trump political earthquake could jolt rightward the 9th U.S. Circuit Court of Appeals for the first time in a quarter century.
The new Republican ascendancy could even revive and strengthen the long frustrated conservative goal of splitting the circuit along its left-right fault line, cleaving the liberal West Coast that voted overwhelmingly for Hillary Clinton from the bloc of inland 9th Circuit states that backed Trump.
The balance currently stands at seven judges appointed by Republican presidents and 18 by Democrats with four vacant slots. Four Trump appointees would leave the split still favoring liberals but more narrowly, 18-11.
"It's possible" that idea of splitting the circuit will again arise, said Eugene Volokh, a conservative professor at UCLA School of Law who founded the Volokh Conspiracy blog. "One driving force might be Republican senators from the red states in the circuit. The past suggests there'll be talk but no action."
Another close observer of the 9th Circuit, Arthur D. Hellman of the University of Pittsburgh School of Law, said he had heard rumors of a renewed circuit split effort from two independent sources.
"We'll have to wait and see if either Judiciary Committee holds a hearing on such a bill — a sign that the Republicans are serious about moving forward with a split," he said.
The court's famously liberal bench has been dominated by Democratic appointees since 1992, when 14 conservative judges sat with 13 named to the bench by Democrats.
President Barack Obama and President George W. Bush each placed seven judges on the 29- member court, which had become dominated by Democratic appointees during the presidency of Bill Clinton.That could change dramatically if more seats open for Trump to fill, and he has the chance to bring the circuit closer to political parity than it has been in years.
Such a development would put the circuit deeply at odds with the city and state where its headquarters lie. San Francisco gave Trump less than 10 percent of its vote; California overall went for Clinton by 61.5 percent.
A newly-enlarged conservative wing could tighten the dynamic in close, contentious cases such as the circuit's vote in late December to set aside a 2-1 pro-gun rights opinion written by leading conservative Diarmuid F. O'Scannlain so the full court can rehear it en banc. Teixeira v. County of Alameda, 13-17132.
Other liberal California views on the Second Amendment and environmental, criminal, immigration, health care, poverty and other causes could clash with a more conservative circuit bench.
Of course, political considerations play little part in most circuit cases, which are decided on technical legal issues. It is the marquee conflicts involving opposing ideological viewpoints, though, that have given the court its left-leaning reputation.
Nationally, Trump has 17 vacant seats to fill in the 179-member federal appellate judiciary. Totals for the 13 circuits combined currently are 72 Republican appointees and 90 Democratic appointees. As recently as 2008, the tilt was reversed and stood at 100 Republican appointees against 66 Democratic appointees.
O'Scannlain declined to comment on court balance and circuit split issues, as did four other liberal and conservative circuit judges asked for an opinion this week.
Senior Circuit Judge Mary M. Schroeder, a President Jimmy Carter appointee who as chief judge from 2000 to 2007 fought off several congressional circuit split proposals based in part on O'Scannlain's prodding, emailed, "I can only make the observation that if Trump is such a good deal maker, he will get the slots filled with nominees the Democrats can accept."
That appeared to augur a series of confirmation brawls, based on the list of Trump's potential Supreme Court nominees that he released during the campaign.
It features hard right candidates such as William Pryor of the 11th Circuit, who has termed Roe v. Wade "the worst abomination of constitutional law in our history."
Also on the list is Raymond Kethledge of the 6th Circuit, who ruled against Obama's environmental and employment discrimination positions. And Trump mentioned Thomas Hardiman of the 3rd Circuit, who ruled strip searches constitutional, even of jail inmates accused of minor crimes. That position is opposed to the 9th Circuit, which held unconstitutional a blanket strip search policy of all persons entering a jail's general population.
Senate Minority Leader Chuck Schumer, D-NY, signaled Tuesday that his party won't roll over for candidates out of the mainstream.
Speaking of Supreme Court picks in televised remarks that likely apply to all federal judicial nominees seeking confirmation, he said, "If they don't appoint someone who's really good, we're going to oppose him tooth and nail. [It is] hard for me to imagine a nominee that Donald Trump would choose that would get Republican support that we could support."
Trump's forthcoming choices for the 9th Circuit remain unknown. Jean-Paul Jassy, a First Amendment and media lawyer who heads Los Angeles-based Jassy Vick Carolan LLP, said he hopes the nominees will be easily confirmable.
"It's important to have a functioning judiciary, so a strong consensus candidate is also important," Jassy said. "It's not good when slots remain open for any length of time."
Of the four seats open on the circuit's active bench, one will go to Californian to replace staunch liberal Harry Pregerson of Woodland Hills, who took senior status in 2015. The other seats are slated for other states whose circuit judges have semi-retired: Oregon, to replace O'Scannlain; Arizona, to replace Barry G. Silverman; and Hawaii, to replace Richard R. Clifton.
Senate Republicans successfully stalled Obama's nomination to replace Pregerson, U.S. District Judge Lucy H. Koh of San Jose.
Now, for Pregerson's open seat, Jassy — a political independent — suggested that Trump nominate Horvitz & Levy LLP appellate partner Jeremy B. Rosen, a former president of the conservative Federalist Society's Los Angeles chapter, who is on record as having deplored the deep polarization that has infected the judicial selection process.
Rosen in 2011 suggested that centrist Democrat Paul J. Watford of Pasadena would make a good Obama candidate for the 9th Circuit, an idea that came to pass with Watford's confirmation to the court in 2012.
"Rosen would be a great candidate," Jassy said. "I've worked with him, and he's a very smart guy that Democrats could support even with his Republican credentials." While denying any inside knowledge, Jassy added, "I wouldn't be surprised if he's in contention."
Rosen declined to comment.
Benjamin G. Shatz called Trump "a wild card politician like Jerry Brown who might play to the Republican crowd" in choosing a nominee.
"But he is unpredictable. There could be patronage payback in his choice. Also, his sister is a circuit judge," Shatz noted, referring to Maryanne Trump Barry of the 3rd Circuit, "so she could figure into helping him choose someone, and I don't know if that kind of relationship has existed before between a president and a circuit judge."
Shatz described himself as a disaffected, non-ideological voter who wasn't happy with either candidate.
"Trump is not really tied into the Republican Party, so he could choose a politician, an academic or a practicing lawyer," he said. "I understand the Federalist Society has been providing him lists of names."
Shatz too named Rosen as a potential candidate. And he cautioned about reading too much into the rightward bent of Trump's Supreme Court short list. "Remember, that was put out before the election, possibly for campaign purposes," he said. "He's a businessman. He's not necessarily about those hard and fast ideological lines."
Another name suggested by some: Harmeet K. Dhillon, California's Republican national committeewoman and a San Francisco trial lawyer.
"People have asked me if I'm interested, but I'm happy where I am," she said Wednesday. "Of course, if the president calls, I couldn't say no to that. I do know more lawyers who want the job than there are seats available." She declined to name names.
Dhillon urged that the confirmation process go smoothly, whomever is nominated.
"Republicans rapidly confirmed the majority of President Obama's cabinet and other senior appointees at the start of his first term," she emailed. "Republicans expect the same courtesy, comity and respect for President-elect Trump's nominees."
She said the process had derailed in "vicious hearings" on Robert Bork's failed Supreme Court nomination in the 1980s. "A Democratic Senate committed character assassination on a fine sitting judge," she wrote. Since then, "the confirmation of federal appellate judges has become increasingly contentious," she added, implying that the trend is likely to continue.
Conservative constitutional law professor John C. Eastman said he doubts that Senate Democrats can mount effective challenges to Trump appellate court nominees.
"Democrats have eliminated the filibuster for the courts of appeal because they wanted to stack the D.C. Circuit," said the former Chapman University School of Law dean. "They can holler all they want."
Eastman added that Trump is likely to gain more 9th Circuit slots to fill than the current four. "There are lots of very senior judges who remain on active duty — Stephen Reinhardt comes to mind — even though they should have taken senior status long ago."
One positive result of a more ideologically balanced court, he said, will be that fewer three-judge panels will consist of all-Democratic appointees. "Panels will be more fairly balanced. The mischief comes where there is no opposing voice. I think things are looking good."
Reprinted with permission from Daily Journal.
