Trump Reshaping Ninth Circuit Will Be Felt for Decades
It's not just the Supreme Court but lower ones being helped by the president.
In May 2016, Donald Trump was close to securing the Republican presidential nomination but needed to shore up his support among skeptical conservatives to have even a remote chance of defeating Hillary Clinton in the general election. In an unexpected but brilliant move, candidate Trump released a list of judges that he promised to choose from in selecting a replacement for the late Supreme Court Justice Antonin Scalia, beloved by conservatives.
Senate Majority Leader Mitch McConnell had infuriated Democrats by refusing to hold hearings on Barack Obama’s nominee, Merrick Garland, so the next president would fill that vacancy. Trump’s list had been compiled with heavy input from the conservative Heritage Foundation and Federalist Society. Proving him right, conservatives rallied to Trump’s banner (even if cautiously), based on this promise.
The result has been far better that conservatives could have imagined. As president, Donald Trump has nominated two solid conservatives (an originalist/textualist in Neil Gorsuch, and a conservative institutionalist in Brett Kavanaugh) to the Supreme Court, and recently passed an impressive milestone — more than 150 nominees confirmed to the federal bench. The positive repercussions of this will be felt for decades to come.
Arguably, even more impactful than Trump’s Supreme Court appointments (replacing originalist Scalia with originalist Gorsuch, and moderate Kennedy with conservative Kavanaugh) has been his reshaping of the notorious Ninth Circuit Court of Appeals, nicknamed the “Ninth Circus” because of its penchant for ultra-leftist rulings.
A week and a half ago, President Trump nominated Patrick Bumatay and Lawrence VanDyke to fill vacancies on the Ninth Circuit. This was the second time Bumatay has been nominated to that court. Trump nominated Bumatay — a Filipino-American federal prosecutor from San Diego and former counselor to the U.S. attorney general — in October 2018, but after strenuous objections by California Senators Dianne Feinstein and Kamala Harris, the nomination lapsed without action.
VanDyke is an attorney with the Justice Department’s Environmental and Natural Resources Division, having served previously as the solicitor general of both Nevada and Montana, where he incurred the wrath of Democrats and radical environmentalists for litigating against Obama’s abusive land- and water-use policies.
If these nominees are confirmed, it will make the ninth and tenth Trump-nominated judges confirmed to the Ninth Circuit, meaning Trump will have appointed more than a third (10 of 29) of the judges on that bench.
The long-term benefits are enormous.
First, the Ninth Circuit is the nation’s largest circuit court, with a jurisdiction covering nine states and two island territories (40% of U.S. land mass). Its rulings impact more than 60 million Americans (roughly 20% of the U.S. population).
The importance of placing Trump’s nominees on the Ninth Circuit — judges who understand their proper role is to interpret the law as written, not twist it into what they want it to be — cannot be overstated.
Of the 7,000-8,000 cases appealed to the Supreme Court each year, only about 80 receive plenary review and are heard by the nation’s highest court.
By contrast, the Ninth Circuit last year received nearly 11,000 filings and “terminated” (rendered final judgments on) nearly 12,000 cases. Meaning, no matter how obviously unfair, ludicrous, or unconstitutional a ruling of the Ninth Circuit may be, the ruling stands and applies to 20% of the American population unless it is one of the precious few taken up by the Supreme Court.
Of its cases reviewed by the Supreme Court, the Ninth Circuit is reversed a staggering 82% of the time. Yet only a tiny fraction of those cases will ever be reviewed by the Supreme Court, so the lunatic rulings stand in the vast majority of cases.
And the Ninth Circuit judges are well aware of that, and take advantage of it.
Stephen Reinhardt, appointed by President Jimmy Carter to the Ninth Circuit in 1979, served until his death in 2018. Known as one of the most leftist judges in the nation, Reinhardt once said of his high reversal rate at the Supreme Court that he would keep issuing leftist rulings because the Supreme Court “can’t catch ‘em all.” It was Reinhardt’s Ninth Circuit Court that ruled in 2002 that the Pledge of Allegiance was unconstitutional because of the words “under God,” a ridiculous ruling unanimously overturned by the Supreme Court.
There have been calls over the years to split the Ninth Circuit into two courts, a position supported by most of the members of the Supreme Court. Aside from its far-left rulings, the Ninth is simply too big and unmanageable.
Until then though, it is undeniable that President Trump’s efforts are significantly impacting the structure and leanings of the Ninth Circuit. With a third of its judges now Trump appointees, it greatly improves the odds that a panel of Ninth Circuit judges will include those with a more conservative, originalist philosophy.
Just this year, in what would have previously been unfathomable, the Ninth Circuit handed Trump major victories in a border-wall battle with environmentalists and in upholding his “remain in Mexico” policy of dealing with asylum seekers.
Decades from now we may very well look back and see that Trump’s influence on reshaping the federal judiciary, especially the Ninth Circuit, did more than anything else to save the Constitution and uphold the Rule of Law.