With year of historic additions 9th Circuit approaches partisan balance

The first days of a fresh decade welcome something of a new 9th U.S. Circuit Court of Appeals, with a composition that meaningfully transformed over the previous calendar year and now includes its largest Republican-appointed cohort in a generation.

The past 12 months saw eight judges confirmed to the appellate court, a tally just one shy of a seemingly unmatchable total former President Jimmy Carter added to the bench in 1979, when he was aided by a 10-seat court expansion.

The unusually robust circuit class of 2019 -- whose latest member becomes active this week -- joins two prior appointees of President Donald J. Trump to constitute more than one-third of the 29-member court. The expeditious additions have prompted some court watchers to conclude that the federal appellate court long considered the nation's most ideologically liberal no longer merits that title.

"In terms of the question of whether the 9th Circuit is now less liberal -- significantly less liberal -- the answer has to be yes," said Ben Feuer, chairman of the California Appellate Law Group, in a phone conversation Thursday. "Yea, you still might have one or two more Democrat appointees, but that's not a liberal court, that's basically a centrist court."

Trump's additions along with three still-active George W. Bush appointees combine to give the court 13 GOP-named judges, two shy of a circuit majority.

"It's awfully close to parity," said Feuer.

University of Pittsburgh School of Law professor Arthur Hellman, a scholar of the circuit, agreed Trump's impact on the court last year was historic.

"Carter's nine [additions] in 1979 will probably stand as an all-time record, and Trump is within one of that," Hellman said.

Though the 9th Circuit's longstanding liberal reputation began evolving after the 1978 Omnibus Judgeship Act helped Carter seat 15 circuit judges during his presidency, its partisan balance did swing rightward in the mid-1990s; 15 Republican appointees -- plus several vacancies -- gave the court a decided rightward tilt in 1996. The circuit's current makeup includes the most GOP selections it's had since then.

Despite the significant change in appointing-party numbers Hellman cautioned against certain conclusions about the circuit's overall ideology.

"Some commentators say, 'Well, the 9th Circuit is no longer the liberal court it has been for so long,'" Hellman noted. "I think that's somewhat premature."

Supporting that idea Hellman cited several instances from 2019 in which the circuit declined to rehear panel decisions in spite of outcries from dissenting Republican-appointed judges. In December the circuit left in place a result granting relief to a death row petitioner. Earlier en banc denials came in cases that limited immigration judges from questioning the credibility of asylum-seekers, found against corporations accused of ignoring child slavery, and weighed in on an employment suit between a teacher and a Catholic school. In each instance large cohorts of mostly Republican appointees -- including several of Trump's 2019 additions -- objected, to no avail. Kayer v. Ryan, 2019 DJDAR 11770 (Dec. 18, 2019); Dai v. Sessions, 2019 DJDAR 9953 (Oct. 22, 2019); Doe v. Nestle, 2019 DJDAR 6324 (July 5, 2019); Biel v. St. James School, 2019 DJDAR 5725 (June 25, 2019).

"The best way of judging the ideology of a court is how the full court votes," said Hellman, who tabulated that of 12 cases voted for full-court reconsideration in 2019 only two could be viewed as left-leaning panel decisions; the matters denied en banc review, conversely, were mostly liberal results.

"Look at the cases denied [en banc rehearing]; they're almost all liberal, and the judges who joined those dissentals are almost always GOP appointees," he said, referencing the term used to describe dissenting en banc vote writings.

Though Democratic appointees still predominate the active judge roster, Feuer noted that many of the most active senior circuit judges are Republican selections, making the overall pool from which three-judge panels are randomly drawn essentially even.

"If you add the senior judges, you may have more Republicans than Democrats," Feuer said.

Hellman agreed that, with senior judges considered, the circuit "is much closer to parity than it's been for a very long time," and concurred that panel assignments may now be as likely as not to feature a majority of GOP-named judges.

Hellman added that the court's near-parity could caution the court's narrow majority of Democratic appointees against calling for reconsideration of conservative-leaning panel results, since the 11-judge grouping randomly drawn for en banc panels is much more likely now to include a majority of judges seated by Republican presidents.

Such a result occurred when the court voted to rehear a case relating to federal funding of organizations that offer abortion; an en banc court including seven Republican appointees sat to consider the matter, which remains pending. California v. Azar, DJDAR 2019 6304 (July 3, 2019).

"Knowledge that can happen might make some of the more liberal judges just a little bit hesitant to vote for rehearing en banc, knowing possibly the result they don't like will be endorsed not just by the three-judge panel but by an en banc court," Hellman said.

Feuer added that purely judging by numbers doesn't fully capture the ideological shift that's taken place in the circuit over recent years, as Trump nominees replaced two of the court's most liberal stalwarts -- the late Stephen Reinhardt and Harry Pregerson. He added that, while appointments of former President Barack Obama have generally been more centrist, the recent erosion of certain Senate rules and norms have allowed for the confirmation of candidates that might be more decidedly partisan.

"The liberals are pretty centrist now, while the conservatives that have come in since the end of the filibuster, those are true conservatives, through and through," Feuer said.

James Azadian, an appellate specialist with Dykema Law, offered a different view, noting that in many instances Trump replaced departing GOP selections, in which cases the court's ideology may not be pushed any further right, and perhaps could move the opposite direction.

"One has to look at this from all angles, not simply say, 'Oh, gosh, there are a lot of new judges,'" Azadian said. "Who did they replace?"

Only half of the eight judges confirmed in 2019 replace predecessors seated by Democrat presidents. And one of those departures, Bill Clinton appointee Richard C. Tallman, is a Republican, whom Clinton nominated as part of a compromise.

The other four, Azadian noted, displace some of the 9th Circuit's most reliable conservatives, including Diarmuid O'Scannlain, Carlos Bea and Jay Bybee.

"One could argue the circuit has gotten less conservative in some aspects," Azadian said. "Some of the conservative lions of the court are no longer there."

O'Scannlain's successor, Danielle J. Hunsaker, was previously appointed to Oregon's state judiciary by a Democratic governor. Patrick Bumatay, the circuit's first openly-gay judge and son of Filipino immigrants, replaces Bea.

"I don't think anyone will say Hunsaker is as conservative as O'Scannlain," Azadian said. "Is Bumatay going to be as conservative as Carlos Bea?"

Feuer acknowledges it's too early to firmly decide the ideology of Trump's eight additions to the court in 2019, but believes the near future will see a centrist 9th Circuit.

"You never know, but I would be skeptical of anyone calling the circuit anything other than centrist," Feuer said. "This is balanced court in terms of ideological makeup."

Both Hellman and Feuer agreed that 2020 was unlikely to see anywhere near the sort of historic turnover the past year witnessed, meaning the current -- near equal -- partisan balance may remain stable for the near future.