Trumping the Ninth

For the first half hour of a Ninth U.S. Circuit Court of Appeals hearing in San Francisco on Jan. 9, Judge Daniel Bress sat quietly.

To Bress’ right, the other judges on his panel, Marsha Berzon and Chief Judge Sidney Thomas, had many questions for August Flentje, an attorney for the U.S. Department of Justice. Flentje’s task: Get the panel to stay a district court’s injunction preventing the Trump administration from requiring immigrants to prove they could purchase health insurance before they could be permitted legal entry.

Berzon and Thomas each questioned Flentje’s assertion, culled from a presidential proclamation, that immigrants were three times more likely to lack health insurance, with each justice asking Flentje for any evidence in the administrative record for the case.

“You submitted nothing. Nothing,” Berzon snapped at Flentje at one point.

And then it came time for attorneys representing the other side to speak, and at last, Bress had something to say, with a line of questions that seemed more rhetorical than inquisitive and supported presidential authority to restrict immigration.

It illustrated a pronounced shift over the past few years in one of America’s most famously liberal courts.

Historically, the Ninth Circuit, which covers most of the western United States, has been a bulwark against conservative presidential administrations and a right-leaning U.S. Supreme Court. Just in the past 20 years, the court has upheld the rights of homeless people to sleep outside without prosecution, insisted on the transparency of anti-abortion clinics, stood up against California voters’ 2008 ban on gay marriage and vacated multiple wrongful convictions. But the makeup of the Ninth Circuit has changed dramatically since Donald Trump’s stunning 2016 election, with the president now having appointed 10 of its 29 active judges.

While many of Trump’s most onerous executive actions might quickly be undone as soon as he leaves office, the impacts of his judicial appointments, which come with lifetime terms, could be felt for decades to come.

It used to be that a judge like Bress never had a chance of joining the Ninth Circuit. For one thing, his July 2019 confirmation vote of 53-45 in the U.S. Senate, with all Republicans voting “yes,” would have fallen short of the 60-vote threshold once needed to clear filibusters and approve judicial appointments.

Former Senate Majority Leader Harry Reid, a Nevada Democrat, changed the threshold to a simple majority vote for district and circuit court confirmations in November 2013. Reid was trying to help President Barack Obama move his judicial appointments through a veritable GOP boycott, but didn’t anticipate what would come next.

“The Obama administration got frustrated with the complete logjam on appointments, both to the courts and executive positions,” McGeorge School of Law emeritus professor John Cary Sims told SN&R. “Therefore, the Senate changed the rules.”

The move ultimately backfired for Democrats, with judicial appointments grinding to a near halt for Obama after Republicans regained control of Senate in 2014. Appointments have accelerated aggressively since Trump took office, with seven of the 10 judges he’s put on the Ninth Circuit being confirmed with fewer than 60 votes.

Bress and other judges have been confirmed without support from either of California’s U.S. senators, Dianne Feinstein and Kamala Harris. The Brookings Institute notes that senators used to have informal veto power for judicial appointments within their states.

But Reid’s successor, Republican Mitch McConnell, who can set the rules for Senate confirmations, and the Trump administration have ignored that past practice.

The American Bar Association has rated five of Trump’s picks to the Ninth Circuit Court of Appeals as “well qualified,” with two more picks receiving this rating from a portion of the ABA.

Trump has gone forward, though, with some controversial choices, such as Patrick Bumatay, confirmed Dec. 12 on a 53-40 vote. While progressives might have appreciated that Bumatay is openly gay, Feinstein tweeted Oct. 31 that he’d argued just two cases in front of the court he’d be joining.

Then there was Lawrence VanDyke, confirmed Jan. 2 on a 51-44 vote and despite a substantial majority of the ABA rating him “not qualified.”

The ABA noted in an Oct. 29 letter to Sen. Lindsey Graham, chairman of the Judiciary Committee, that the judge’s “accomplishments are offset by the assessment of interviewees that Mr. VanDyke is arrogant, lazy, an ideologue, and lacking in knowledge of the day-to-day practice including procedural rules.”

Harris tweeted Dec. 11, in explaining why she’d be voting against VanDyke, that he “once wrote that all gun safety laws are misdirected and even sought the endorsement of the NRA in a 2014 campaign.”

The ABA letter also noted that some interviewees had raised concerns about whether VanDyke “would be fair to persons who are gay, lesbian, or otherwise part of the LGBTQ community.”

VanDyke, for his part, broke down crying over this question while in front of the Judiciary Committee.

While politicized cases are the most likely to be affected, Sims believes many cases will be decided the same no matter which judge is on the bench.

“They’re just routine cases,” he said.

Some of the politicized cases are heart-wrenching, though.

On Jan. 9, the Ninth District panel heard from another Justice Department attorney, Scott Stewart, who asked the judges to set aside a district court order preventing the Trump administration from halting asylum for immigrants at the U.S.-Mexico border.

Attorneys for the Southern Poverty Law Center argued on behalf of Nora Phillips, legal director and co-founder of Al Otro Lado, which has an office in Tijuana and assists Latin American refugees.

“We never, ever saw anything like this,” Phillips told SN&R. “People started being turned away right after Trump got elected. And then once he was inaugurated, we started hearing, ’There’s no more asylum. You have to go to the consulate. You need to go to a refugee camp.’ The closest refugee camp to Tijuana is in Ecuador.”

Then in July, the Trump administration halted all asylum claims at the southern border, including to a group of people who were prevented from applying before the ban went into effect, spurring the lawsuit.

Since the ban, Phillips said her clients have faced harsh treatment from cartels, gangs and corrupt law enforcement while waiting south of the border. “We had three unaccompanied minors who were kidnapped out of the youth shelter, strangled and stabbed—and only one survived,” she said.

Again, though, Bress had no critical questions for the government and went to work on attorneys for Phillips as soon as he got the chance. Bress disputed a claim by attorney Ori Lev of Mayer Brown’s Washington, D.C., office that the plaintiffs were unjustly prohibited from claiming asylum before the ban and then barred thereafter.

The judge asserted, a minute into Lev’s arguments, that a district court judge had already made clear in a ruling on the case that “there’s no dispute that this rule couldn’t apply to these plaintiffs. The only question is if it does apply to them on the face of the rule. And it clearly does.”

Bress also didn’t waste time making his views known on the immigrant health-care case, according to Esther Sung, an attorney for the Los Angeles-based Justice Action Center.

“We knew going in that Judge Bress wasn’t sympathetic to our arguments because he wrote a dissent setting out his views,” Sung told SN&R.

The Trump appointee seemed to align himself against a vulnerable population, said Kevin R. Johnson, dean of UC Davis School of Law.

“I think what you saw yesterday is you saw two appointees [Berzon and Thomas] appointed by Democrats who seemed more sympathetic than the Trump appointee, who seemed to side with executive power,” Johnson told SN&R. “In some areas, the political divide is going to be more prominent than other areas.”

The three-judge panel had not ruled by press time. It’s not clear whether the Supreme Court will take up either case.

The Supreme Court, which has had a conservative majority since the Nixon administration, hears 50 to 75 cases a year while lower federal courts hear thousands, Johnson noted.

The higher court has sometimes let potentially controversial Ninth Circuit decisions stand, such as a 2018 ruling prohibiting prosecution of homeless people in areas where emergency shelter was unavailable. At other times, though, the court has overturned Ninth Circuit rulings, such as when it allowed the Trump administration’s travel ban on certain Muslim nations to take affect.

A narrow liberal majority still sits on the Ninth Circuit. Sixteen of the court’s 29 active judges were appointed by Democratic presidents. Another 20 judges serve with senior status, meaning they can hear most cases, with nine of the current senior judges appointed by Democrats.

Needless to say, the stakes are high.

“If Trump is reelected, they’ll undoubtedly be more appointments for him,” Johnson said. “I could guess five to 10, more likely six or seven in the second term of the Trump administration.”

There has yet to be a Trump appointment to the Eastern District court in Sacramento, the local federal court under the Ninth Circuit which decides numerous cases, including mortgage fraud arising from the 2008 financial meltdown and civil rights cases involving law enforcement.

“I was at the Eastern District conference and all they’re talking about is how they need more judges,” Jacobs said.