by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Former President Donald Trump consistently pulled rightward the West Coast’s most powerful federal court through his appointments. Now, as President Biden eyes the judiciary, he will have the chance to swing it back to the left.
Since the election, a number of aging judges on the 9th U.S. Circuit Court of Appeals have indicated that they are preparing to take senior status, a state of semi-retirement that frees up the president to pick a replacement. These nine members were all appointed by then-President Bill Clinton, and for years, they gave the court a reliable liberal bent.
Trump upended that power balance. During his term, he cut the 11-seat lead Democratic-appointed judges held on the 29-judge court to a margin of three. The court governs a massive amount of territory (California and six other Western states, as well as Alaska and Hawaii), and the consequences were considerable. The once-liberal bastion now often delivers conservative opinions on hot-button issues such as abortion, gun rights, and religious freedom cases.
A greater number of 9th Circuit court cases make it to the Supreme Court than any other court, in part because of the massive jurisdiction, but also because it has long attracted legal activists of all stripes seeking to win controversial cases. Trump in 2018 vowed to turn it conservative in 2018 after a rant in which he denigrated the court as “a disgrace.”
In the following two years, many believe that he did.
“President Trump appointed 10 judges to the 9th Circuit and dramatically changed its overall ideology,” said Erwin Chemerinsky, the dean of the University of California, Berkeley’s law school.
It’s unclear what the future of the court’s ideological makeup is, Chemerinsky added, since Biden has not had the opportunity to fill any vacancies yet.
But there’s a good chance that the court will not become the conservative bloc that many legal scholars predicted when Trump began shaping the court.