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.
McGahn complained that he had taken meetings with Feinstein on “multiple occasions.” And he lashed out at the state’s other senator, Democrat Kamala Harris.
“Senator Harris has refused to engage with the White House at any level, whatsoever on the issue,” McGahn said.
As a result, given the “extensive attempts at consultation,” McGahn said the President is “exercising his prerogative to nominate his own well-qualified nominees.”
The White House this week announced three new nominees – Patrick J. Bumatay, Daniel P. Collins and Kenneth Kiyul Lee – for the California seats on the 9th Circuit.
Feinstein didn’t miss a beat to express her outrage.
“The White House moved forward without consulting me,” she fumed in a news release. She noted that she had met with McGahn on June 27 to discuss vacancies and express reservations about Lee and Collins. And that she had sent a letter in October recommending three potential nominees, Lucy Koh, Andrew Guilford and Boris Feldman.
“The decision to move forward with these nominees without consultation,” she said “reflects President Trump’s desire to remake the court.”
“I was acting in good faith,” she said and added that she hoped her “blue slips” would be honored.
She referred to the Senate’s longtime custom of honoring a home state senator’s objection to a nominee by submitting a “blue slip” to torpedo the nomination.
But Grassley said in a statement last November that the blue slip courtesy had been treated differently throughout the years and he did not feel a “negative or unreturned” blue slip would necessarily prevent a hearing for an appeals court nominee unless the White House failed to consult with home state senators.
That is the reason, in his letter, that McGahn stressed his attempts at meeting with the home state senators.
“While Grassley has moved forward several circuit court nominees without their home state senator’s blue slips, doing so to the ranking member of the committee would be a dramatic escalation and slap in the face,” said Christopher Kang, chief counsel of a group called Demand Justice that opposes the President’s nominees.
As for any new hearings, the Senate is on recess until the week following the midterm election, and a lot could change in the coming weeks.
McGahn, who has dedicated himself to judges since the early days of the campaign, is now slated to step down. Some think Grassley may no longer chair the Judiciary Committee after the midterms, choosing instead to move to another committee.
“The timing of these nominations is curious given the potential churn in the Senate and the Judiciary Committee in particular,” Kang said.
But the message is clear: The White House wants to flip the court.
There are other attacks on the 9th Circuit as well. Sen. John Cornyn told CNN on Friday that he thinks the 9th Circuit should be broken up.
“It’s just unmanageable. It’s so big and unwieldy right now, I’d like to see it broken up myself, because it’s almost unmanageable. It’s also probably the most reversed circuit court by the US Supreme Court,” the Texas Republican said.
CNN’s Ted Barrett contributed to this report.
