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Will Trump Reshape the 9th Circuit?

By Casey C. Sullivan, Esq. | Last updated on

The Supreme Court isn't the only federal court with a longstanding empty seat. There are currently 114 outstanding federal judicial vacancies, including 17 on federal appellate courts. Four of those open appellate seats are on the Ninth Circuit.

Outstanding nominations expired when the new Congress convened on January 3rd, meaning that now-pending Obama nominees, like Judge Lucy H. Koh, won't fill those vacancies. That means that President-elect Trump could have an outsized impact on the courts, moving nominees more quickly through a Republican-controlled Senate. Here's what this could mean for the Ninth Circuit.

The Ninth Circuit's Growing Importance

With 29 active judgeships and covering 15 district and territorial courts across nine states, the Ninth Circuit is by far the biggest circuit court in the nation. That alone makes it one of the most important. But its importance could grow under the new administration.

While much of the country shifted right in the last election, the West Coast leaned left. The West Coast's blue states have promised to fight the Trump administration on everything from immigration, to energy, to health care, and even to space flight. (Yes, space flight.) When it comes to challenging the feds in the courts, California could soon replace Texas as the main thorn in the government's side.

Many of those disputes will be heard in the Ninth Circuit, allowing the court to exercise more influence than it already does.

How Different Will Trump's Ninth Look?

But will the Ninth's liberal reputation survive a new set of Trump appointees? Probably.

As Ross Todd noted recently in the Recorder, four open seats on a court of 29 probably won't sway the balance of the Ninth Circuit too radically. While four openings might radically reshape smaller circuits, 18 out of 25 sitting judges are Democratic appointees, he points out, meaning that "the opportunity to shape the court is a bit more muted."

Further, three of the four openings are from judges who were considered conservative or centrist. Senator Charles Grassley, chair of the Senate Judiciary Committee, has said "he will abide by the tradition of allowing home-state senators to hold up objectionable nominees," Todd notes, potentially blunting Trump's impact even more.

But, that's not to say that the changes facing the Ninth won't be felt. Arthur Hellman, a professor at the University of Pittsburgh School of Law and Ninth Circuit scholar, predicts the biggest impact of the four vacancies to be felt in circuit's en banc cases, where 10 judges are drawn randomly to rehear cases. With more conservatives in the mix, the ideological makeup of en banc panels could increasingly depend "on the luck of the draw," he says.

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