‘For too long, liberal activist judges on the Ninth Circuit have been legislating from the bench versus respecting the constitution and rule of law…’
(Ben Sellers, Liberty Headlines) The Senate this week is set to vote on confirming Daniel Bress to the 9th Circuit Court of Appeals—and, with it, place the final piece (for now) in the remarkable transformation of one of the most notoriously liberal judiciaries ever.
Bress would fill the last of seven recent openings to be appointed by President Donald Trump on the 29-judge appellate court.
Additionally, three other anticipated vacancies on the bench were awaiting nominees as of July 1.
“For too long, liberal activist judges on the Ninth Circuit have been legislating from the bench versus respecting the constitution and rule of law,” said a statement from the office of Sen. Steve Daines, R-Mont., touting Bress as a reformer.
“From stonewalling critical forest management projects that would help prevent catastrophic wildfire and protect good paying timber jobs… to blocking important energy projects like the Keystone Pipeline which would create hundreds of jobs and help secure our energy security… Americans have had enough of these extreme rulings and obstruction under the guise of protection,” said the statement.
A Unique Opportunity
While Trump’s appointments may not tip the balance on the San Francisco-based circuit in favor of conservatives, they certainly will go a long way toward restoring it.
As The Washington Post noted in February, “These new and soon-to-be judges will have a significant impact on the median political alignment … [which] means the 9th Circuit will boast a political balance not seen in decades, at least since President Jimmy Carter and a post-Watergate Democratic congressional majority added 10 judgeships to the court in the late 1970s.”
Federal judges are given lifetime appointments, according to the Constitution, and otherwise can only be removed through retirement or the impeachment process.
Not only did Trump inherit a historically high number of judgeships to fill, but he also benefited from the “nuclear option” implemented by former Senate Majority Leader Harry Reid, D-Nevada, which eliminates the risk of a filibuster—thus ensuring that nominees need not be constrained by their judicial philosophies.
“With little need to gain interparty support, Trump can choose nominees who’ve been approved by staunchly conservative legal groups like the Federalist Society,” said the Post.
Due to the way the court randomly selects panels of both active and senior (part time) judges, the Post said, “these numbers mean any given panel will have a nearly even chance to draw a majority of Republican-appointed judges as Democrat-appointed ones.”
The impact of the appellate court normally would not reach the level of hype reserved for Supreme Court appointments. However, the radically activist 9th Circuit has assumed an outsize role by enjoining many of the executive actions taken by Trump.
Along with the 6th Circuit, it boasts one of the highest overturn rates by the Supreme Court (nearly 80 percent), including many high-profile and controversial rulings.
Among the measures the court has injected its politics into during the current administration:
- blocking efforts to construct a wall at the U.S.–Mexico border (after the court ruled in favor of the Sierra Club that Trump had violated the Endangered Species Act and other environmental laws)
- attempting to block the travel ban to and from countries that had ties to terrorism (later overruled by the Supreme Court)
- attempting to block federal immigration officials’ ability to detain without bail during deportation proceedings any illegal aliens who had past criminal records (also overturned by the Supreme Court)
- upholding the injunction of a liberal district court judge that prevented Trump from repealing the Deferred Action on Childhood Arrival policy—even though it only took effect due to an executive order from his predecessor, Barack Obama
- upholding California’s right to designate itself a “sanctuary state” and blocking the federal government from withholding funds on the basis of the state’s refusal to cooperate with federal immigration efforts
- extending the ruling of the Bill Clinton-era Flores settlement that restricted detention of unaccompanied minors at the border to less than 20 days, and applying it to entire family units
- blocking the repeal of an Obamacare mandate that required religious-based nonprofits to cover contraception under their health policies for employees
- reinstating the federal funding of abortion advocacy groups (the court last week voted to reverse its own decision after a panel comprising a Reagan appointee and two George W. Bush appointees allowed the executive order to stand)
Already, however, the newly reshaped court has begun making a difference. In June, a three judge panel on the 9th Circuit upheld Trump’s ban on transgender troops in the military, reversing a Washington judge who had attempted to enjoin it.
The court also green-lighted a Trump policy that would require asylum-seeking immigrants who steal their way across the border to await their hearings in Mexico instead of the U.S., where legal loopholes and capacity issues at detainment facilities limit the amount of time many illegal aliens can be held. (Other activist judges continue to search for the legal grounds to overturn the president’s mandate.)
A Radical Transformation
Some, including Sen. Daines, have continued to call for action on the resolution.
“Folks in Big Sky Country are sick and tired of activist judges in California throwing rural states like Montana under the bus,” said the release from his office. “These judges are legislating from the bench and not doing their job.”
While that proposal is not likely to be revisited by current House Speaker Nancy Pelosi and House Judiciary Chair Jerrold Nadler, it may no longer be a GOP priority following vacancies created by judges who “were among the most liberal ever to sit on a federal court,” said the Post.
The unexpected death of Judge Stephen Reinhardt on March 29 left the court without one of its most domineering leftist voices, described by the Post as “the ‘liberal lion’ who authored the opinion tossing California’s ban on same-sex marriage.”
Another late judge, Harry Pregerson, was described by the Post as “arguably even more liberal than Reinhardt, who in his 1979 confirmation hearing told the Senate that ‘if I had to follow my conscience or the law, I would follow my conscience.'”
Even some of the recently departed right-leaning judges were unreliable.
Alex Kozinski, a libertarian-leaning judge, retired in 2017 while facing sexual harassment allegations.
And the Post described the late John Noonan as “a tough-to-label moderate whose decisions often leaned on Catholic moral teaching.”
Although gun-rights advocates raised eyebrows over Trump’s appointment of Hawaii-based judge Mark Bennett last year, the Post praised the seven Trump appointees to date as solid conservatives with both youth and experience on their side.
“They’re all experienced practitioners with stellar credentials,” said the paper. “Accordingly, once fully staffed, the court’s conservative wing will be newly empowered with sharp, young minds capable of steering the law in a more conservative direction over time.”
If confirmed this week, 39-year-old Bress “would likely serve on the federal appellate bench for decades,” said the Post.
Partisans on the Left have attempted to derail the nomination complaining that Bress—who practices law in Washington, DC—does not live in California.
But prominent Republicans, including Senate Judiciary Chair Lindsey Graham, have stood behind his exemplary record while noting that Bress is a native Californian, a member of the state bar and maintains an office there.
Before advancing the nomination, Chairman @LindseyGrahamSC again weighed in on the debate over Daniel Bress, who has been nominated to the Ninth Circuit.
“This is not unusual.” pic.twitter.com/EbEllvNcX3
— Senate Judiciary (@senjudiciary) June 20, 2019