A new generation of judges is changing the face of the nation’s most liberal court. And it’s also breaking up government gridlock in the feud between the Republican Trump Administration and California’s Democratic government, experts say.
The U.S. 9th Circuit Court of Appeals, known as a bastion of liberalism—and infamously dubbed the “Ninth Circus” by some conservative commentators—serves the entire West Coast, including Alaska, Hawaii, Guam, and the Northern Mariano Islands. It encompasses Arizona, Idaho, Montana, and Nevada.
Since he was sworn into office three years ago, President Donald Trump has achieved 187 federal judicial confirmations, appointing more judges than any of the last four presidents.
Trump has appointed 10 of the 29 active judges on the 9th Circuit Court of Appeals, narrowing the margin of Democratic appointees from an 11-seat majority to a three-seat majority. There are now 13 Republican-appointed and 16 Democrat-appointed judges.
And, at his rallies, Trump is not exactly shy about letting his political opponents know he intends to keep appointing more conservative judges to the federal bench. It was a key plank in his 2016 campaign platform.
Dr. Victor Davis Hanson, a senior fellow at the Hoover Institution, has applauded the shift as a healthy move for democracy to restore more checks and balances in government. He sees the change as a welcome relief, especially in California, after decades of government overreach and special interest groups turning to the 9th Circuit Court of Appeals for results that are consistent with the progressive line.
“What it has meant is that people court shop. They like to file suits in California because they know in the past that the court has overruled [two ballot measures banning] gay marriage; it has overruled Prop. 187 that denied social services to illegal aliens; and it has modified Prop. 209 affirmative action or racial components for hiring and admissions,” Hanson said in an interview. “And, so it has a reputation of being really bold in overturning plebiscites and propositions. It tends, in California, to be a force multiplier of the Democratic stranglehold on political institutions.”
Before the 1960s, it was rare for a federal appellate judge to overturn a ballot measure that millions of people had approved through referendum, according to Hanson. But, in recent years, activist judges in the federal courts have been more apt to second guess or block legislation, often delaying new policies and sending them to the U.S. Supreme Court for a final decision.
In California, Democrats control the governorship, and hold super majorities in both the state assembly and senate. Both U.S. senators are Democrats and 46 of 53 seats in the House of Representatives are held by Democrats.
“So, everybody understands that if you want redress of government overreach, you’re not going to find it in the assembly or the state senate; you’re not going to find it in a statewide office; you’re not going to find it in a congressional district; you’re not going to find it with your two senators; and you’re not going to find it in the federal courts either,” Hanson said.
The 9th Circuit has gained a reputation for rubber-stamping Democratic policies and blocking federal Republican policies and presidential executive orders.
“When you have a conservative president and you want to block his executive orders, legal groups go to Los Angeles or San Francisco usually, and they file lawsuits with the 9th Circuit and they, as appellate court judges, have the ability to stay a presidential executive order,” Hanson said.
“It’s the largest federal appeals circuit—in terms of population about 60 million people—and the most liberal, or at least it was the most liberal. The conservatives are getting to about—with a few leftovers from the Bush-era—I think they are getting to about 40 percent for traditionalist or constructionist judges,” Hanson said. “Obama, for eight years, appointed liberal judges, and then the two Bushes appointed centrist judges. For example, the justice that overturned two ballot propositions declaring marriage is between a man and woman was a Bush judge.”
The two ballot measures were Prop. 22 in 2000 and Prop. 8 in 2008, both passed by a majority of California voters, but overturned by the 9th Circuit Court of Appeals.
“The Democrats still have a majority of judges on the 9th Circuit and they still have a majority of judges on all the circuits—the circuit courts and the appellate courts,” said Hanson. “It doesn’t necessarily mean that every ruling is going to go against a conservative because the presiding judges in these circuits appoint particular judges to particular cases or they get them randomly selected depending on the method they use.
“So, if you have 11 or 12 or 13 conservative justices in the 9th Circuit, you could file a suit, or your case could come up for appeal with conservative judges. It’s possible, where in the past, before Trump, it was very unlikely,” he said.
Larry Salzman, director of litigation for the Pacific Legal Foundation (PLF), said that he has noticed a change in philosophy among judges Trump has named to the 9th Circuit Court of Appeals and other federal courts.
“What’s fascinating and encouraging is—at least in their public statements—many of the judges he is appointing view their role as checking the political power of the other branches according to constitutional principles,” Salzman said.
“And that is different than previous generations of both Republican and Democratic appointees who more often believed in a philosophy of judicial restraint—more judicial minimalism—in which and they thought courts should largely stay out of disputes and let them work their way through the democratic process. But that’s an abdication of the judicial role, and allows a state that is controlled by one particular party—like California—to dominate for generations as they have.”
Salzman describes PLF as a public interest law firm that prides itself as “defenders of the American principles of individualism and liberty.” PLF has operated nationwide since 1973 and currently has active cases in 27 states.
“What I hope and PLF hopes is that this slate of judges will give meaningful judicial protection for individual rights in all cases. I think that contrasts with maybe an older judicial philosophy that under the guise of judicial restraint, or perhaps in a zeal to uphold some democratic values over constitutional principles, was more of a rubber stamp on government action,” Salzman said. “So, I guess I’m encouraged that some of the new judges that have been appointed are likely to take seriously their duty to enforce constitutional limits on government power.”
PLF hopes the 9th Circuit Court of Appeals will reconsider some of its precedents, particularly in the area of property rights and the separation of powers, Salzman said.
“I think people overplay the partisan nature of this at times,” Salzman said. “Some people over the years have called it a liberal court. I’m not sure if that’s necessarily the right way to put it. It’s a court that has tended to defer to government power. And, I think what’s interesting—if there is a theme in the appointments I’ve seen from President Trump, it seems as though the new generation of judges or the ones that he’s appointing have made break from a judicial philosophy that reflects deference to government power to a philosophy in which judges view their role as subordinating political power to constitutional principles.”
“I think it’s too early to say whether that will be the effect of these appointments, but based on public statements, this new generation of judges seems to be committed to enforcing constitutional limits on government power.”
“I don’t know if the ‘traditionalist’ or ‘constructionist’ labels are particularly helpful,” said Salzman.
“I don’t see it as a partisan issue, frankly. I don’t see Republicans as any better than Democrats on these issues. My view is a good judge subordinates political power to the text of the Constitution.”
In his experience as a litigator, some of the judges that have been “most helpful” in striking down heavy-handed government legislation were Clinton-era appointees, he added.
Political stripes aside, the characteristic of any good judge lies in what they believe about America’s founding principles, Salzman said.
“What’s important is whether or not the judge takes the Constitution or the Bill of Rights seriously,” he said.
Salzman is optimistic that the new judges will “trigger good dissent” to bring important cases to the attention of the Supreme Court of the United States more quickly.
“Having judges working in the spirit of putting constitutional limits on government can put constitutional issues at play that have been long-settled—and some wrongly in favor of too much government power,” Salzman said. “It can be very helpful in shaping the law in a direction that advances that liberty and individual rights going forward.”