At President Donald Trump’s inauguration, the United States Court of Appeals for the Ninth Circuit faced ample vacancies that the United States Courts’ Administrative Officelabeled “judicial emergencies” because of their protracted length and its huge caseload. Recent departures by Circuit Judge Stephen Reinhardt and former Chief Judge AlexKozinski, who occupied California posts, and other jurists’ decision to change their active status mean that the circuit has five emergencies, three in California, because Trump has appointed only three nominees. The court also resolves the most filings least expeditiously.
Limited clarity about whether more judges will leave active service over Trump’s presidency suggests that additional confirmations may be necessary; however, the selection process’s stunning politicization will compromise this initiative. For example, when the tribunal enjoined Trump’s controversial determinations which excludedimmigrants from seven predominately Muslim nations, he excoriated multiple jurists of the circuit. Trump afforded numerous candidates, but merely three have received approval, partly because home state Democratic politicians retained “blue slips” when the White House minimally consulted. The vacancies—which exceed seventeen percent, and three California openings, which are ten—show the crucial need to fill more vacancies.
This piece first analyzes the vacancy conundrum’s history. It evaluates selection throughout the presidencies of Barack Obama and Trump, while scrutinizing California’s pressing situation. Ascertaining that the predicament comes from reduced Democratic and Republican cooperation and some jurists’ departures, this Article reviews thatcomplication’s impacts and detects that systematic partisanship has subverted confirmations, attributes which Trump could exacerbate. Because the plentiful vacancies injure myriad litigants by eroding judicial resources to decide lawsuits, the final Partproffers solutions for the President and the Senate to promptly fill the California openings.
Carl Tobias, Filling the California Ninth Circuit Vacancies, 92 S. Cal. L. Rev. Postscript 83 (2019).