Upon Republican President Donald Trump’s inauguration, the United States Court of Appeals for the Ninth Circuit experienced some pressing appellate vacancies, which the Administrative Office of the United States Courts (AO) carefully identified as “judicial emergencies” because the tribunal resolves a massive docket. Last year’s death of the iconic liberal champion Stephen Reinhardt and the late 2017 departure of libertarian former Chief Judge Alex Kozinski—who both assumed pivotal circuit leadership roles over numerous years—and a few of their colleagues’ decision to leave active court service thereafter, mean the tribunal presently confronts four judicial emergencies and resolves most slowly the largest number of appeals.
The 2016 and 2018 federal election cycles—which render uncertain the party that will capture the presidency and the Senate at the polls in 2020—show that more posts could open when additional jurists determine that they will change status across the Trump Administration. Nevertheless, striking partisanship will frustrate the effort to appoint Ninth Circuit judges. For example, rapidly following his inauguration, Trump prescribed controversial dictates that banned virtually all travelers from seven primarily Muslim nations. District courts enjoined those measures, which, in turn, the Ninth Circuit affirmed several times. This action prompted the chief executive to aggressively criticize the tribunal and many jurists of the court. The White House also initially tendered rather few candidates for the four unfilled positions, but none realized approval before 2019, mainly because concerned home-state Democratic politicians refused to return “blue slips” due primarily to the White House’s minimal consultation with the legislators. The Grand Old Party (GOP) accuses Democrats of slowing down Trump’s competent nominees when they persistently withhold slips and pursue cloture and roll call ballots for many aspirants. Because the Ninth Circuit among the thirteen federal appellate courts addresses the most cases the least swiftly, the vacancies— which are nearly fourteen percent of the judicial complement—starkly illuminate the mounting need for the President and the upper chamber to fill the voluminous openings with highly capable, mainstream jurists.
This Article first scrutinizes the vacancy problem’s specific history. It then descriptively and critically explores appointments for the Ninth Circuit in the tenure of Presidents Barack Obama and Trump while reviewing the court of appeals’ circumstances today. Finding that the complication emanates from severely limited collaboration between Republicans and Democrats together with the fortuity that three preeminent judges completed active service close to the Obama Administration’s conclusion and other prominent circuit jurists more recently departed, the piece surveys the vacant posts’ important ramifications. Part IV detects that Republican and Democratic obstruction magnified the corrosive partisanship, strident rancor, and continuous “paybacks” that subverted appointments. Trump constantly exacerbates these phenomena, as witnessed in his divisive practices for choosing and confirming nominees and caustic rhetoric spewed at jurists of the courts, most notably judges of the Ninth Circuit. Because those empty positions decrease judicial resources for the Ninth Circuit to decide cases, and thereby harm myriad individuals and groups engaged in federal litigation, the final part posits suggestions for President Trump and the Senate to expeditiously fill the appellate court openings.
Carl Tobias, Filling the Ninth Circuit Vacancies, 27 Wm. & Mary Bill Rts. J. 1113 (2019).