Essential California: The changing makeup of the 'nutty' 9th Circuit
Dec 15, 2019 22:58:44 #
dtucker300
Loc: Vista, CA
Julia Wick - L. A. Times <essentialcalifornia@latimes.com>
Dec 13 at 3:52 AM
Good morning, and welcome to the Essential California newsletter. It’s Friday, Dec. 13, and I’m writing from Los Angeles.
There are the big, noisy political developments — and the quiet ones. But both matter.
This week, the world watched as articles of impeachment against President Trump were introduced in the U.S. Congress and met with hours of withering debate. But something else also happened in the Capitol this week that could affect California, and other western states, for decades.
This week, the U.S. Senate confirmed two more Trump nominees to the 9th U.S. Circuit Court of Appeals. The 9th Circuit is the nation’s largest appellate court, and one long regarded as a liberal bastion. (The reality of that reputation has starkly waned in recent years, but more on that below.)
Judges Lawrence VanD**e and Patrick Bumatay, who are both in their 40s, will serve lifetime appointments. Their ascent to the bench means that Trump appointees now account for more than a third of the active judges on the very same court that the president once characterized as “a big thorn in [his] side” and “a complete & total disaster.”
What is the 9th Circuit?
The 9th Circuit is a court of appeal with jurisdiction over nine western states and two Pacific Island territories — an area that spans roughly 1.4 million square miles and encompasses more than 60 million people. Most of those cases are decided by three-judge panels, with those three judges chosen at random.
The court wields a great deal of influence over the law of the land for those in its jurisdiction. Think of it this way: Yes, the Supreme Court is the last word. But the Supreme Court hears only about 100 to 150 of the more than 7,000 cases it is asked to review every year. So for the vast majority of disputes, the decision of the circuit court functions as final say. (The same can be said for all 13 circuit courts — the 9th is inherently no more powerful, it’s just a whole lot bigger.)
The 9th Circuit has been responsible for a plethora of contentious decisions over the years, including a ruling that the mention of God in the Pledge of Allegiance violated the Constitution. That ruling was overturned by the Supreme Court.
How did the 9th Circuit come to be so liberal in the first place?
The answer is simple: Jimmy Carter. A 1978 expansion of the courts added 10 seats, which were Carter’s to fill — with a Congress controlled by Democrats to back his choices. The regular cycle of judicial retirements, deaths and appointments meant that Carter was responsible for 15 total appointees to the court.
In the natural order of things, four to eight years of a Republican presidency are typically followed by four to eight years of a Democratic presidency (or vice versa), and the shifting pendulum of political appointments accounts for something like rough parity in the judicial makeup. But the Carter-era expansion of the court was “essentially an external shock to that system,” according to Jon Michaels, a professor of law at UCLA. His appointments remade a court that had previously been relatively conservative.
And Carter didn’t just choose liberal judges, he installed some of the most liberal judges to ever serve on an appellate federal court — like Judge Stephen Reinhardt, who remained a crusading force until his death in 2018, or the late Judge Harry Pregerson, who famously played a key role in attaching a vast array of social programs to the construction of the 105 Freeway.
These were men who “approached the judicial role as one where the job was not merely to apply the law as written by the legislature, but also to help balance economic and power disparities in the legal process,” according to lawyer Ben Feuer, who serves as chairman of a firm that specializes in California appellate cases. Under their leadership, the 9th Circuit often issued rulings that not only made headlines but also carved out its place in the popular imagination as an activist court.
That was a long time ago. Is the “nutty 9th” reputation still true?
Not for a while. The court still leans liberal, but without the fervency of its past.
Feuer posits that this is, at least in part, due to a general trend of the judges appointed by Democratic presidents shifting more toward the center over the last few administrations, while Republicans have continued to appoint judges who are consistently, if not increasingly, conservative. And the Carter-era liberal lions are no longer on the court.
But even with all that said, the makeup of the court has still changed drastically during the Trump years.
As recently as April 2017, judges appointed by Democratic presidents outnumbered Republican appointees on the court by about 2 to 1 (that number probably also includes semi-retired senior-status judges). The court is now edging toward a more even split, with a ratio of 16 Democrat-appointed active judges to 13 Republican-appointed ones.
What does all this mean for the future?
California, as you well know, has a reputation for forging its own progressive path. The ability to occasionally go a bit rogue, and operate independently from the rest of the nation is made possible in part by the sheer size of our population and economy. But California has “also been able to insulate itself a little bit, because there have been federal challenges that have been brought in courts that have generally been sympathetic to progressive regulation,” Michaels said.
“So, that may change” the UCLA law professor continued. “This might be a time where California is less able to chart a more exceptional route within the country.” But, he explained, all of that depends on what happens next. If Trump wins another term, we could see the courts further remade — with the potential for a 9th Circuit that ultimately leans toward the right.
Dec 13 at 3:52 AM
Good morning, and welcome to the Essential California newsletter. It’s Friday, Dec. 13, and I’m writing from Los Angeles.
There are the big, noisy political developments — and the quiet ones. But both matter.
This week, the world watched as articles of impeachment against President Trump were introduced in the U.S. Congress and met with hours of withering debate. But something else also happened in the Capitol this week that could affect California, and other western states, for decades.
This week, the U.S. Senate confirmed two more Trump nominees to the 9th U.S. Circuit Court of Appeals. The 9th Circuit is the nation’s largest appellate court, and one long regarded as a liberal bastion. (The reality of that reputation has starkly waned in recent years, but more on that below.)
Judges Lawrence VanD**e and Patrick Bumatay, who are both in their 40s, will serve lifetime appointments. Their ascent to the bench means that Trump appointees now account for more than a third of the active judges on the very same court that the president once characterized as “a big thorn in [his] side” and “a complete & total disaster.”
What is the 9th Circuit?
The 9th Circuit is a court of appeal with jurisdiction over nine western states and two Pacific Island territories — an area that spans roughly 1.4 million square miles and encompasses more than 60 million people. Most of those cases are decided by three-judge panels, with those three judges chosen at random.
The court wields a great deal of influence over the law of the land for those in its jurisdiction. Think of it this way: Yes, the Supreme Court is the last word. But the Supreme Court hears only about 100 to 150 of the more than 7,000 cases it is asked to review every year. So for the vast majority of disputes, the decision of the circuit court functions as final say. (The same can be said for all 13 circuit courts — the 9th is inherently no more powerful, it’s just a whole lot bigger.)
The 9th Circuit has been responsible for a plethora of contentious decisions over the years, including a ruling that the mention of God in the Pledge of Allegiance violated the Constitution. That ruling was overturned by the Supreme Court.
How did the 9th Circuit come to be so liberal in the first place?
The answer is simple: Jimmy Carter. A 1978 expansion of the courts added 10 seats, which were Carter’s to fill — with a Congress controlled by Democrats to back his choices. The regular cycle of judicial retirements, deaths and appointments meant that Carter was responsible for 15 total appointees to the court.
In the natural order of things, four to eight years of a Republican presidency are typically followed by four to eight years of a Democratic presidency (or vice versa), and the shifting pendulum of political appointments accounts for something like rough parity in the judicial makeup. But the Carter-era expansion of the court was “essentially an external shock to that system,” according to Jon Michaels, a professor of law at UCLA. His appointments remade a court that had previously been relatively conservative.
And Carter didn’t just choose liberal judges, he installed some of the most liberal judges to ever serve on an appellate federal court — like Judge Stephen Reinhardt, who remained a crusading force until his death in 2018, or the late Judge Harry Pregerson, who famously played a key role in attaching a vast array of social programs to the construction of the 105 Freeway.
These were men who “approached the judicial role as one where the job was not merely to apply the law as written by the legislature, but also to help balance economic and power disparities in the legal process,” according to lawyer Ben Feuer, who serves as chairman of a firm that specializes in California appellate cases. Under their leadership, the 9th Circuit often issued rulings that not only made headlines but also carved out its place in the popular imagination as an activist court.
That was a long time ago. Is the “nutty 9th” reputation still true?
Not for a while. The court still leans liberal, but without the fervency of its past.
Feuer posits that this is, at least in part, due to a general trend of the judges appointed by Democratic presidents shifting more toward the center over the last few administrations, while Republicans have continued to appoint judges who are consistently, if not increasingly, conservative. And the Carter-era liberal lions are no longer on the court.
But even with all that said, the makeup of the court has still changed drastically during the Trump years.
As recently as April 2017, judges appointed by Democratic presidents outnumbered Republican appointees on the court by about 2 to 1 (that number probably also includes semi-retired senior-status judges). The court is now edging toward a more even split, with a ratio of 16 Democrat-appointed active judges to 13 Republican-appointed ones.
What does all this mean for the future?
California, as you well know, has a reputation for forging its own progressive path. The ability to occasionally go a bit rogue, and operate independently from the rest of the nation is made possible in part by the sheer size of our population and economy. But California has “also been able to insulate itself a little bit, because there have been federal challenges that have been brought in courts that have generally been sympathetic to progressive regulation,” Michaels said.
“So, that may change” the UCLA law professor continued. “This might be a time where California is less able to chart a more exceptional route within the country.” But, he explained, all of that depends on what happens next. If Trump wins another term, we could see the courts further remade — with the potential for a 9th Circuit that ultimately leans toward the right.
Dec 16, 2019 05:39:44 #
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