A Western appellate court that awaits reshaping by President-elect Donald Trump will soon consider conflicts that include:
▪ A challenge from water districts in California’s San Joaquin Valley to a restoration plan for the Klamath River.
▪ A Freedom of Information Act request requesting details of the federal government’s location-tracking technology.
▪ Complaints against police officers in Fresno, California, and King County, Washington.
▪ Myriad bids by immigrants to avoid deportation to Mexico.
These cases and others like them that are scheduled for oral arguments next month in San Francisco and Seattle showcase the legal reach of the 9th U.S. Circuit Court of Appeals, a distinctively liberal court for which Trump and a Republican-run Senate might soon try to push in a new direction.
“I think there’s a perception that the 9th Circuit, more than the other circuits, reaches out and doesn’t always follow precedent,” said Fresno attorney Oliver Wanger, himself a Republican-appointed former federal judge.
Wanger, who served 20-plus years as a Fresno-based U.S. District Court judge for the Eastern District of California, underscored the appellate stakes, noting the 9th Circuit is “very significant” in its sprawling region. The court ruled on 6,562 fully argued cases last year, few of which were later considered by the Supreme Court. Usually, the appellate court has the last word in a vast region that includes both red and blue states.
“Obviously, to the states in the district, it’s hugely important,” Wanger said.
Often cast as liberal-leaning, the 9th Circuit spans nine Western states of amazing diversity from conservative Arizona, Idaho and Alaska to liberal California, Washington and Hawaii. The 29-judge court is numerically dominated by Democratic appointees, 16 of whom were named by presidents Barack Obama or Bill Clinton. There are currently two appellate-level vacancies, and two additional seats will become vacant when other judges assume senior status at the end of the year.
6,562 number of cases the court heard and ruled on last year.
Hinting at the potential for change, more than a dozen of the 9th Circuit’s current active judges will be 65 or older next year.
Still, a makeover will take time. Two of the four immediate 9th Circuit vacancies that Trump could face when he takes office have already been held by Republican appointees, so filling these seats could simply amount to a GOP-to-GOP lateral pass.
“On the one hand, he may not be able to reshape the court very much,” Carl Tobias, a University of Richmond School of Law professor who studies the circuit, said Wednesday. “On the other, he may not need or want to reshape the court much, as some observers suggest that the court is more moderate today than when Obama assumed office.”
Its docket, which currently includes some 13,000 pending cases, ranges from the parochial to the groundbreaking.
Last month, for instance, the appellate court reversed an Alaska-based trial judge and ruled that federal scientists can use long-range climate projections in deciding whether to protect species like the Alaskan bearded seal.
“I am deeply troubled by the 9th Circuit’s decision ... to allow unnecessary and crushing federal regulatory burdens to move forward,” Sen. Dan Sullivan, R-Alaska, said in a statement.
Last year, the appellate court also angered conservatives by ruling in a class-action lawsuit that unlawful immigrants incarcerated longer than six months are entitled to bond hearings.
“The record shows that many class members are detained well beyond the six-month mark,” wrote Judge Kim McLane Wardlaw, a 62-year-old Clinton appointee, adding that “almost half remain in detention at the 12-month mark.”
The Supreme Court will hear the case on Nov. 30. If the high court reaches a 4-4 tie decision, as it has on several controversial cases since the death of Justice Antonin Scalia, then the 9th Circuit’s decision will stand.
The largest of the federal circuits, the 9th Circuit’s reversal rate is frequently the butt of lawyers’ jokes, though the data is more nuanced. The high court reversed the circuit 80 percent of the time last term, but only 63 percent of the time the previous term, which was lower than many other circuits, according to records compiled by the SCOTUSblog website.
Over the past year, the Senate, in anticipation of a White House turnover, has slowed the nationwide pace of judicial confirmations. Most famously, Senate Republicans have refused to consider for more than 250 days the nomination of Judge Merrick Garland to replace Scalia on the Supreme Court.
“There has been a lot of publicity about the Supreme Court, but none whatsoever about the trial courts,” Wanger said.
There are 81 vacancies nationwide on the trial-level federal district courts, including five in California, three in Washington, and one in Idaho.
It’s been nine months since Judge Lucy Koh was nominated to the 9th Circuit Court of Appeals and it’s time she received an up-or-down vote. Her nomination doesn’t need to wait until next year.
Sen. Dianne Feinstein, D-Calif.
Though Obama last February nominated San Jose-based U.S. District Judge Lucy Koh for promotion to the appellate court, seven Republican members of the Senate Judiciary Committee voted against the Harvard-educated daughter of Korean immigrants in September. Trump’s nominee for attorney general, Sen. Jeff Session of Alabama, joined the naysayers, one of whom complained about Koh’s alleged “judicial activism.”
The committee approved Koh’s nomination by a 13-7 vote, but like many of Obama’s 58 other pending federal judicial nominations, her chances now could wither on the Senate floor as Republican senators await a more ideologically sympathetic Trump administration.
“With the 9th Circuit facing a judicial emergency, it’s critical that the Senate act on this vacancy,” Democratic Sen. Barbara Boxer said in a statement Tuesday, calling Koh a “supremely qualified nominee.”
Boxer’s California colleague, Sen. Dianne Feinstein, will play an even more significant role in vetting Trump’s judicial nominees through her newly acquired position as senior Democrat on the Senate Judiciary Committee. Like Boxer, she still holds out hope for Koh.
“My staff is working to ensure Judge Koh is included in any end-of-year package of judges, and I look forward to seeing Judge Koh confirmed as soon as possible,” Feinstein said Wednesday.