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Looking At Changes Happening Within The Nation's Largest Federal Appeals Court46:13
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Security guards stand in front of the Ninth U.S. Circuit Court of Appeals  on June 12, 2017 in San Francisco, California. (Justin Sullivan/Getty Images)
Security guards stand in front of the Ninth U.S. Circuit Court of Appeals on June 12, 2017 in San Francisco, California. (Justin Sullivan/Getty Images)

Judicial appointees and the Trump administration. A slate of new judges will have a major impact on the 9th circuit in the Western United States. We’ll take a look.

Guests

Carl Tobias, law professor at the University of Richmond School of Law. (@URLawSchool)

Rorie Solberg, professor of political science at Oregon State University. (@OregonState)

Andrew Kragie, congress and judicial nominations reporter for Law360. (@AndrewKragie)

From The Reading List

Los Angeles Times: "Trump has flipped the 9th Circuit — and some new judges are causing a ‘shock wave’" — "When President Trump ticks off his accomplishments since taking office, he frequently mentions his aggressive makeover of a key sector of the federal judiciary — the circuit courts of appeal, where he has appointed 51 judges to lifetime jobs in three years.

"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."

Politico: "How Trump is filling the liberal 9th Circuit with conservatives" — "A bastion of liberalism in the federal judiciary is slowly turning rightward, threatening Democratic court challenges on everything from abortion to who gets a green card.

"The Senate confirmation of Lawrence VanDyke and Patrick Bumatay to the 9th U.S. Circuit Court of Appeals this month brought to nine the number of appointments President Donald Trump has made to the 29-member bench that serves as the last stop for nearly all legal complaints lodged in nine Western states. Democratic-appointed judges now hold a three-seat majority, compared with 11 at the start of Trump's presidency.

"If the trend continues, it represents a major shift in the liberal wing of the judiciary, meaning lawsuits for progressive causes won’t find a friendly ear as easily as they have. The circuit has been the go-to venue for activist state attorneys eager to freeze Trump policies on health care, immigration and other social issues. It ruled against Trump's weakening of Obamacare's contraceptive mandate, as well as multiple versions of his travel ban."

Reason: "'Veteran' Ninth Circuit Judges Complain to L.A. Times About New Ninth Circuit Judges" — "Last September, 'sources familiar with the private Supreme Court deliberations' talked to CNN about the Census Case. It was not clear who spoke to the media. Was it one or more Justices? Law clerks? Court staff? People who were in touch with the Justices or law clerks? These leaks were troubling. Confidential deliberations should remain confidential–especially when press reports paint some members of the Court in an unfavorable light. These disclosures corrode collegiality. Indeed, there have been new rounds of rumors about leaks in the Title VII SOGI cases.

"This problem, regrettably, is not limited to the Supreme Court. On Saturday, Maura Dolan of the L.A. Times interviewed 'several judges on the 9th Circuit' about the impact of President Trump's new nominees. Dolan noted that 'some' of the judges 'declined to discuss their colleagues or inner deliberations.' That 'some' should have been 'all.' Why would any judges discuss their 'colleagues' or opine on 'internal deliberations'?

"Alas, some judges 'refused to be quoted by name, saying they were not authorized to speak about what goes on behind the scenes.' In other words they spoke on background, not for attribution. Judges cannot speak on background. Ever. Generally, when a source says, 'I am not authorized to speak publicly,' that statement suggests that, given the proper authorization, she could speak publicly. But judges can never speak publicly about internal deliberations. No authorization can be given by any superior authority. Shame on those judges who spoke on background to the press."

This program aired on February 25, 2020.

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