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Can Trump Flip the Ninth Circuit in His Favor?

WASHINGTON, DC - MAY 16: U.S. President Donald Trump gives a thumbs up as he walks toward Marine One while departing from the White House on May 16, 2019 in Washington, DC. President Trump is traveling to New York to attend a fundraiser. (Photo by Mark Wilson/Getty Images)
By William Vogeler, Esq. on June 06, 2019

President Trump is gaining on the U.S. Ninth Circuit Court of Appeals, where he has already appointed six judges.

Before he took office, there were three times more Democratic appointees than Republicans on the Ninth Circuit bench. Now the count is almost even.

With the latest appointments, it's the first time in more than three decades that the balance has changed so dramatically. Court-watchers are wondering what's next.

Latest Appointments

Over the objections of California's Democratic Senators, the U.S. Senate confirmed Kenneth Lee and Daniel Collins along party lines. It marked Trump's 40th circuit court appointment. At the same time, the Senate Judiciary Committee held a hearing on the nomination of Daniel Aaron Bess. If confirmed, he will be the seventh judge appointed by Trump to the Ninth Circuit.

Of course, judges don't count party affiliations when they vote on cases. Chief Justice John Roberts, in a rare rebuke from a chief justice to a president, said there are no such thing as "Obama judges." But there are political realities, and everybody knows it. In the grand scheme, Trump is on a tear. He is on track to appoint more federal judges than any president in recent history. The last time a president packed a court like this, President Franklin Delano Roosevelt was in office.

Meanwhile, Trump hasn't let up on his criticism of the Ninth Circuit. Scholars anticipate a change in direction for the appeals court.

Change in Direction

"As the Ninth Circuit shifts to become more conservative and better parallels the Supreme Court's ideological baseline, I could only imagine fewer liberal Ninth Circuit decisions and fewer overturned Ninth Circuit decisions generally," said legal scholar Adam Feldman, who blogs at Empirical SCOTUS.

The Ninth Circuit has a historical reputation for its reversal rate, but that is changing. According to a recent study, the Ninth Circuit trailed three other circuits in reversal rates over the last decade. During the same period, the Sixth Circuit became the most-reversed with an 88.1 percent rate. The Eighth Circuit was second with 76.3 percent, and the Eleventh was third with 75.9 percent.

By this time next year, Trump might even stop complaining about "the Ninth Circus."

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