Liberals are panicking about the fact that President-elect Donald Trump will be able to fill four vacancies on the historically left-leaning Ninth Circuit Court of Appeals when he takes office later this month.
Outgoing Sen. Barbara Boxer (D-CA) called the vacancies a “judicial emergency,” according to Bay Area public radio station KQED, even though there are 29 judges on the court. The “emergency” is that Trump’s nominees might be able to make the court more conservative.
The Ninth Circuit’s jurisdiction covers many West Coast states, and its decisions have often reflected the liberal political culture of California and other “left coast” outposts. Over the past several decades, the frequency with which the U.S. Supreme Court — which had a narrow 5-4 conservative majority until 2016 — reversed Ninth Circuit rulings became a recurring theme. However, the Ninth Circuit has shown flashes of independence, as in recent Second Amendment rulings.
Liberals are worried about that increasing “moderation” at the Ninth Circuit. KQED interviewed University of Richmond law professor Carl Tobias, who commented: “I think even in the Obama years the court has moved to be more moderate than it used to be, so I think that with those four appointments it could make some difference and move the court further in that direction.”
On some issues, particularly on gay marriage, the liberal outlook of the Ninth Circuit has also become accepted more widely. The Supreme Court’s ruling on Hollingsworth v. Perry (2013), for example, vacated the Ninth Circuit’s ruling on procedural grounds but effectively paved the way for the legalization of same-sex marriage in California and elsewhere.
Barring a last-minute set of recess appointments, Trump will be able to fill the four vacancies, subject to the approval of the Senate. During the election, Trump produced a list of potential conservative judicial nominees to the Supreme Court.