Might GOP and Democrats agree on bigger 9th Circuit?

The successful confirmation of President Donald Trump's latest 9th U.S. Circuit Court of Appeals nominee, Oregon state judge Danielle Hunsaker, would fully staff the circuit's 29 active judicial posts for the first time since 2015. But repeated recommendations from the federal courts' administrative body suggest that full complement of authorized judges still leaves the circuit lacking needed bench officers.

The Judicial Conference of the United States, which considers court rules and policy, recommended in March Congress authorize five additional judgeships for the San Francisco-based circuit. It has issued identical suggestions in multiple previous biennial reports while not calling for additions to any other federal appellate courts.

Were Congress to take the group's advice it would give Trump the chance to complete a full ideological rebalancing of the traditionally-liberal court. Hunsaker would be the president's eighth successful 9th Circuit selection and would become one of 13 Republican appointees on the court overall.

Though a divided Congress makes the path to 9th Circuit expansion politically daunting, Vanderbilt University Law School professor Brian Fitzpatrick, who studies the circuit and has recommended it be broken up, suggests Republicans might pursue the idea.

"The 9th Circuit has a well-deserved reputation for being very liberal for a very long time, so Democrats were always more excited about adding these judges than Republicans were," Fitzpatrick said. "I could see Republicans being more excited than they used to be about adding these judges."

Fitzpatrick also said Democrats considering a longer time horizon might find strategic benefit in expanding the court, too, though it would allow more Republican appointees in the short term. Fitzpatrick believes dynamics endemic to the circuit -- like home senators in reliably-Democratic states exercising influence over judicial selections -- will naturally incline it leftward over time.

"You could conceivably have a situation where Democrats are thinking long-term -- the 9th Circuit has long been a liberal court and will probably trend back that way -- and may say, 'We're willing to give a few judges now because in the long run we think it'll be a more liberal court," Fitzpatrick said. "And the GOP may say, 'We're willing to do it;' so this might be a moment where both sides see something in the idea."

"Democrats are very mistrustful of [Senate Majority Leader] Mitch McConnell and Donald Trump on nominations, so they would be loathe to give them more unless they thought, in the long run, they'd come out ahead, which they might," Fitzpatrick went on.

University of Pittsburgh School of Law Professor Arthur Hellman, who studies the 9th Circuit, suggested such a strategy would be hazardous for Democrats, but that Fitzpatrick's surmise of a natural, leftward center of gravity in the westernmost circuit seemed correct. Noting even moderate or right-leaning states like Nevada, Arizona and Montana have elected Democratic senators, Hellman speculated conservative judicial candidates might have more trouble sufficiently burnishing their federal appellate bench resumes in such places, where they might face political headwinds.

"[A Senate delegation] probably doesn't perfectly reflect the legal community in those states, but it's probably more difficult to find reliably conservative nominees than it would be in states that were red, or purple with a red tinge, because they're not going to get appointments to state appellate benches; they may not be as prominent in bar associations," Hellman said. "It would be risky, but there's something to that."

Cautioning Democrats in Congress against attempting the high-risk strategy may be the fact that the traditional power home-state senators have wielded over judge picks has waned. The "blue-slip" norm granting senators de facto vetoes over circuit nominees didn't survive Trump's first 9th Circuit confirmation battle, over the eventually-scuttled selection of Ryan Bounds.

Fitzpatrick suggested Trump leaving office could soften the political hostility currently attending judicial nominations thus allowing traditional senatorial courtesies, like the blue-slip procedure, to resume.

"One kind of feels this is an extraordinary time, and things might go back to normal once Trump is out of the White House," Fitzpatrick said. "But another view is that things never go back to normal with judicial nominees; they just get more partisan every four years."

"Democrats may think they don't have any long-term interest [in adding judges] with the blue-slip process thrown out, for now at least, and that Republican presidents will put whomever they want on the circuit," Fitzpatrick added.

Ilya Shapiro, director of the Cato Institute's Center for Constitutional Studies, who has written on the need to break up the 9th Circuit, said the current political climate made a circuit expansion "high unlikely" without a filibuster-proof majority in the Senate.

Were the recommended judgeships added, Shapiro noted, calls to divide the expansive circuit would still be merited.

"Most of the reason for the split is the sheer size of the circuit, including in terms of the number of judges, such that nobody can keep track of the development of the law," Shapiro wrote in an emailed response Friday. "Adding more judges would alleviate some of the workload [and] delay concerns, but obviously would only exacerbate those other issues."

Fitzpatrick agreed, stressing in particular that the court's en banc process -- which summons 11 judges to review important appeals or correct outlier panel rulings -- would become less representative with a circuit of 34.