“The 9th Circuit is a very important circuit, and the presence of more conservative judges puts in peril all of American health care reform,” said Sen. Richard Blumenthal (D-Conn.), himself a former state attorney general.
With California Attorney General Xavier Becerra’s penchant for challenging Trump’s agenda, the 9th Circuit’s caseload of liberal causes isn’t likely to shrink, said Chris Kang of the liberal group Demand Justice, who oversaw the selection and vetting of judicial nominees in the Obama White House. But the calculus could change.
“Republicans politicize the judiciary so they can accomplish policy goals that they wouldn’t be able to do through the democratically elected branches of government,” he said.
The 9th Circuit isn’t the only court whose makeup has changed through Trump’s conservative nominees and McConnell’s singular focus on confirming judges. The 1st Circuit in Boston and 3rd Circuit in Philadelphia now have Republican-appointed majorities. But the 9th has outside importance as the biggest circuit in the country and a jurisdiction with more than 60 million people.
The court already has issued some rulings favorable to Trump’s agenda.
A 9th Circuit panel of four Democratic appointees and seven Republican appointees in July allowed the administration’s overhaul of the Title X federal family planning program to take effect. The policy bars clinics that provide or refer patients for abortions from receiving program funds for reproductive health services like STD screenings and contraception and prompted Planned Parenthood to quit over the change. Another 9th Circuit panel this year ruled in favor of letting Trump’s Justice Department distribute grants to cities that use the money to crack down on illegal immigration.
Conservatives who have long criticized the court’s decisions say the Trump appointments have brought the bench “closer to balance,” as Sen. Chuck Grassley (R-Iowa) tweeted as VanDyke was confirmed. While Senate Judiciary chairman, Grassley nixed a Senate procedure that let senators block appellate nominees from their home state. Seven of Trump’s nine 9th Circuit judges were confirmed over home-state senators’ objections.
Outside conservative groups say the changing court will reduce the odds of liberal foes of the president filing challenges with like-minded activist judges eager to freeze his agenda.
“Forum shopping will be less attractive now that you have a basically balanced bench as far as Republican or Democratic nominees,” said Katie Glenn, government affairs counsel for Americans United for Life, which focuses on litigation and legislation for the anti-abortion movement.
Daniel Goldberg, legal director of the liberal judicial advocacy group Alliance for Justice, stressed that beyond the numbers, Trump has appointed nominees with strong ideological views. That was the case with VanDyke, who was confirmed in a 51-44 vote on Dec. 11 after drawing criticism for past writings and opinions on same-sex marriage, abortion, labor and immigration.
The court’s new lineup could quickly weigh in on more high-profile cases.
The Trump administration will likely seek a reversal of two separate lower court injunctions against the health provider conscience rule and has been asked by DOJ to freeze a recent nationwide hold on Trump’s order to deny legal immigrants entry to the U.S. if they can’t cover their health care costs.
The changing composition of circuits like the 9th may ultimately galvanize liberals to push an aggressive judicial agenda of their own, further polarizing the courts.
“The asymmetry [in temperament] is what causes the problem,” said Jon Michaels, a UCLA law professor. “We have a quite forceful right flank, buttressed by a left flank that prizes judicial humility and judicial modesty. As progressives think about what the public interest should be, it’s not just winning the next court battle, but it’s about what their representatives should think about in reshaping the judiciary when they’re in the majority.”
Kang’s take is that Democrats should adopt the GOP’s strategy when they next control the Senate and executive branch: Nominate more ideological judges and then add seats to the court.
The next Democratic president, he said, “will need to write a new playbook.”