- The Washington Times
Thursday, February 24, 2022

President Trump’s conservative appointments to the 9th U.S. Circuit Court of Appeals made the historically liberal bench more moderate, court watchers say.

The likelihood of a three-judge panel including two Republican appointees has increased significantly with Mr. Trump’s 10 judges confirmed to the 29-member court.

“It’s less liberal than it was. Panels can still be drawn favorably,” said Josh Blackman, a professor at South Texas College of Law.

“You do see a lot more decisions that would have gone the other way before Trump’s appointments,” said Ilya Shapiro, a Supreme Court and judicial nominations expert. “The 9th Circuit appointees are generally very, very strong. I do think this represents a major achievement of the Trump administration.”

With 29 active judges, the 9th Circuit is the nation’s largest appellate system. It hears appeals from Washington, Montana, Idaho, Oregon, California, Nevada, Arizona, Alaska and Hawaii.

Before Mr. Trump took office, the court had nine Republican-appointed active judges and 18 Democratic appointees. Since he left the White House, the 9th Circuit has had 13 Republican and 16 Democratic appointees.

“There are actually five [other] circuits that have a higher D-to-R ratio now,” Mr. Shapiro said, citing the 1st, 4th, 10th, District of Columbia and Federal circuit courts.

Court watchers said the Trump judges have made differences in the outcomes of cases, especially in Second Amendment challenges:

• In McDougall v. County of Ventura, a three-judge panel ruled last month that COVID-19 restrictions that shut down gun shops for 48 days violated the Second Amendment.

Judge Lawrence VanDyke, a Trump appointee, wrote the opinion and added in a separate concurrence that the decision will likely be reversed because of the full, or en banc, circuit court’s bias.

“I’m not a prophet, but since this panel just enforced the Second Amendment, and this is the Ninth Circuit, this ruling will almost certainly face an en banc challenge. This prediction follows from the fact that this is always what happens when a three-judge panel upholds the Second Amendment in this circuit,” Judge VanDyke wrote.

• In Duncan v. Becerra, the court ruled 2-1 that California’s ban on large capacity magazines violated the Second Amendment.

However, that ruling was reversed when the court reheard the case en banc, which means several of the circuit’s judges heard arguments in the legal battle.

“En banc court is tilted to the left,” Mr. Blackman said.

Conservative court watchers used to criticize the 9th Circuit for having a high number of Supreme Court reversals. Since Mr. Trump’s appointees were confirmed, however, the number of 9th Circuit cases reversed by the high court has remained high.

In the 2020 term, the Supreme Court reviewed 16 cases from the 9th Circuit and reversed 15 of them. In the 2019 term, the high court reviewed 10 cases and reversed nine.

Elliot Mincberg, a senior fellow with People for the American Way, said the number of reversals isn’t reliable when evaluating circuit court leanings because the number of cases reviewed varies by year.

“A lot of times, that is random and it depends on when cases get accepted by the court, but I don’t think there’s been enough time to see enough of an impact to see any percentage change,” Mr. Mincberg said. “I don’t agree with the claim that they were reversed more than anyone else.”

Mr. Blackman, likewise, said the issue with analyzing reversals is the number of cases. He noted the 9th Circuit’s large caseload.

“It’s sort of like comparing apples and oranges,” he said.

President Biden has appointed four judges to the 9th Circuit in roughly one year, and experts say conservative gains will likely be lost.

“Trump never completely closed the gap,” said Curt Levey, president of the Committee for Justice. “Whatever improvement there is … will be short-lived.”

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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