If it’s not “the economy, stupid,” as James Carville famously exhorted, then it’s the judiciary, smarty-pants. Those two issues turn out Republicans and conservatives more than any others in presidential elections, and it’s a sure bet the latter is why reluctant conservatives rallied to Donald Trump in 2016 — well, most of them, anyway. And Trump has delivered in both areas, but especially on judicial appointments.
His biggest triumph — shared by Senate Majority Leader Mitch McConnell — could well be the Ninth Circuit Court of Appeals, the famously far-left appellate panel. The Los Angeles Times calls Trump’s ten appointments to the Ninth Circuit a “shock wave” that has flipped the court:
In few places has the effect been felt more powerfully than in the sprawling 9th Circuit, which covers California and eight other states. Because of Trump’s success in filling vacancies, the San Francisco-based circuit, long dominated by Democratic appointees, has suddenly shifted to the right, with an even more pronounced tilt expected in the years ahead.
Trump has now named 10 judges to the 9th Circuit — more than one-third of its active judges — compared with seven appointed by President Obama over eight years.
“Trump has effectively flipped the circuit,” said 9th Circuit Judge Milan D. Smith Jr., an appointee of President George W. Bush.
To assess the early impact of these appointments, The Times interviewed several judges on the 9th Circuit. Some either declined to discuss their colleagues or inner deliberations or refused to be quoted by name, saying they were not authorized to speak about what goes on behind the scenes.
To be sure, some of the new appointees to the 9th Circuit have quickly won the respect of their colleagues. But the rapid influx of so many judges — most without judicial experience — has put strains upon the court and stirred criticism among judges appointed by both Democratic and Republican presidents.
The term “flipped” seems pretty overblown, at least for now. Readers find out a little further in that Democratic appointees still outnumber Republican appointees 16-13 on the panel. Even that’s a little misleading, as Ed Whelan notes, as a few of the Republicans are considered moderate-to-liberal, including the one that claims the court has been “flipped”:
And same claim in article by Judge Milan Smith is particularly odd, as Smith, though appointed by GWB, is widely regarded as a moderate liberal.
— Ed Whelan (@EdWhelanEPPC) February 22, 2020
If there’s any “shock wave” involved, Hugh Hewitt writes, it’s that the Ninth Circuit is finally back in the mainstream of appellate courts:
The court hasn’t flipped, its “reverting to the norm” of every other circuit from its outlier status.
— Hugh Hewitt (@hughhewitt) February 22, 2020
Oddly enough, the Los Angeles Times never mentions the original shock wave that made all this possible. Then-Senate Majority Leader Harry Reid changed Senate tradition in his 2013 “nuclear option” by using a simple majority to change rules to bar filibusters on judicial confirmations. That gave Barack Obama carte blanche to stack the DC Circuit, but it also placed a powerful tool in the hands of subsequent Senate majorities of the same party as the president. Voila! Trump now has 51 appellate appointments under his belt, and if he wins a second term on the basis of protecting the judiciary, undoubtedly will get dozens more confirmed as well.
The complaints in the article over Trump’s ten appointments are, by contrast, overblown. They’re divisive! They don’t follow the rules! They didn’t have judicial experience! Closer to the end, however, other voices remind readers that both Obama and Clinton appointed non-judges to the Ninth Circuit and that everyone has a learning curve when taking an appellate post.
This “shock wave” is just a nonsense comment, an attempt to paint these appointments as some sort of unprecedented makeover just seven years after Reid and Obama did the same damned thing on the other coast. It’s as overblown as the hyperbole over the Ninth Circuit’s rate of reversals.
It does serve one purpose, however — to remind conservatives and moderates about the consequences of the next election. Who do they want to see appointing the next two Supreme Court justices and dozens of appellate judges — Bernie Sanders or Donald Trump? It’s still going to be the judiciary, smartypants.
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