White House nominations to 9th Circuit set off firestorm


While President Donald Trump has had unprecedented success in reshaping the judiciary by placing two justices on the Supreme Court and a record breaking 29 judges on federal appeals courts, he believes he has been stymied by what he considers the liberal bent of the 9th US Circuit Court of Appeals. It’s a powerful court headquartered in San Francisco that has jurisdiction over nine West Coast states and two territories.

Now the President is taking the gloves off, hoping to eventually flip that court.

It’s a court that has ruled against him on the travel ban, his proposed ban on transgender soldiers in the military, and sanctuary cities, and it is considering a case concerning the planned phase-out of the Deferred Action for Childhood Arrivals immigration program. Judicial conservatives charge that Democrats are filing suit in California district courts hoping for an eventual victory before the 9th Circuit, much as Republicans filed suit in the more conservative 5th Circuit during the Obama years.

“Well, as predicted, the 9th Circuit did it again—Ruled against the TRAVEL BAN at such a dangerous time in the history of our Country,” the President tweeted in June 2017. In April 2017, he had tweeted “First the Ninth Circuit rules against the ban & now it hits again on sanctuary cities—both ridiculous rulings. See you in the Supreme Court!” Last January, he wrote, “It just shows everyone how broken and unfair our Court system is when the opposing side in a case (such as DACA) always runs to the 9th Circuit and almost always wins before being reversed by higher courts.”

At the end of 2016, the court was authorized 29 judgeships, with four of those seats vacant. Of those 25, 18 were appointees of Democratic presidents and seven were appointees of Republicans. Currently, there are six vacancies. Sixteen judges are appointees of Democratic presidents and seven are appointees of Republican presidents.

Although vacancies on the court have existed for months, the White House has waited nearly two years to put nominees forward to fill the open California seats.

This was likely partly out of deference to Democratic Sen. Dianne Feinstein, who is one of two home state senators and also serves as the ranking member of the Senate Judiciary Committee. But it’s also because White House Counsel Don McGahn and Feinstein went back and forth for months hoping to come to an agreement, to no avail.

This week, McGahn erupted in a rare display of anger.

“We have spent nearly two years attempting to engage constructively with the Senators regarding the growing number of judicial vacancies tied to California,” he said in a letter sent to Chairman Chuck Grassley, an Iowa Republican, and dated October 10.

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