Rebuilding the Ninth Circuit

Almost 40 years ago, one-term President Jimmy Carter completely changed the balance on the Ninth Circuit Court of Appeals, the largest and most litigious circuit in the country.   In 1978, after the Democrat majority in Congress expanded the 19-member court to 29, President Carter had the unprecedented opportunity to fill those 10 seats and replace another 5 judges who retired.  Carter did not just appoint liberal judges.  He appointed some of the most liberal judges ever to serve.   These new appointments sharply tilted the once-conservative court to the left, creating a Valhalla for criminal defendants and litigants seeking to advance progressive social causes through the courts.   Maura Dolan of the Los Angeles Times reports, that for the first time since 1981,  10 new appointments to the court by President Trump has significantly reduced the divide between Republican and Democrat judges.   “Ten new people at once sends a shock wave through the system,” one unnamed 9th Circuit judge said.

The article discusses the reaction of some of the older members of the court to the new appointees.  It is safe to conclude that some of the criticism is related to the loss of power that the democrat-appointed judges used to wield.

As noted by Bush appointee Judge Milan Smith, Democratic appointees still make up the majority of active judges — 16 to 13. But the court also has judges on “senior status” who continue to sit on panels that decide cases. Senior-status rank gives judges more flexibility but allows them to continue to work, even full time.  Of the senior judges who will be deciding cases on “merits” panels — reading briefs and issuing rulings — 10 are Republicans and only three are Democratic appointees.  “You will see a sea change in the 9th Circuit on day-to-day decisions,” Smith predicted.