Ah yes, the Court that conservatives love to hate. They have made hay for many years out of railing against the 9th Circuit, and even trying to reduce its power by splitting it. The liberalism of the 9th Circuit has become one of those things that “everyone knows,” and its reputation is not without merit. But how liberal is it, really? How did it get so liberal, and how well has it maintained its liberalism in recent years, as new judges have joined the court? These questions we shall explore in part 4 of our 13-part series, Better Know a Circuit. Part 1 covered the 4th Circuit, dramatically transformed by President Obama. Part 2 covered the 7th Circuit, where he had a much more limited impact, but where we have great opportunity for transformation should we elect Hillary Clinton to the presidency and Tammy Duckworth, Russ Feingold, and Evan Bayh to the Senate. Part 3 explored the DC Circuit, which, thanks to Obama, now serves as a bulwark against conservatives’ onslaughts on federal economic/environmental regulatory power, rather than an enabler of said onslaughts. For part 4, we travel out west, to the biggest political lightning rod of all lower courts. I included a poll in the DC Circuit diary, and the 9th Circuit, which covers California, Oregon, Washington, Hawaii, Alaska, Idaho, Montana, Nevada, and Arizona, attracted the greatest interest, so here’s that diary.
More below the fold.
A Brief History of the 9th Circuit
Anyone who has some knowledge of judicial politics is aware of the 9th Circuit’s reputation. But how much substance is there to that reputation? And where does it come from, anyway?
The answer is there is some truth behind the reputation, though it’s really not quite as liberal as many people think. As to how it came to be a liberal court, a much more durable one than most (when Obama took office, it was the lone circuit with a majority of Democratic-appointed judges)? There may be no one more responsible for the liberalism of the 9th Circuit than:
President Jimmy Carter.
Why Carter, who left office 35 years ago? How did he influence the direction of the 9th Circuit for so long? Because of the dramatic increase in size of the court under his presidency, which gave him the chance to appoint a disproportionate number of judges.
The 9th Circuit is by far our nation’s largest circuit, with 29 full-time active judgeships. (The 5th Circuit is second with 17.) When you see how many states it includes, and allow that one of those is our nation’s largest state by far, this makes sense. As the west, California in particular, grew in size, more court cases arose, and more judges were necessary. The expansion of the 9th Circuit reached its apogee when Jimmy Carter was president—fully ten new judgeships were created under his watch, increasing the size of the court from 13 to 23. Because that was before the days of GOP obstructionism, and because the Senate was Democratic, Carter got to fill all of them. He also filled 5 of the 13 seats that already existed—so as of 1981, 15 of 23 9th Circuit judges were Carter-appointed. And most of them were quite liberal. To this day, 7 of those 15 judges continue to hear cases. Liberal lion Stephen Reinhardt, 85, remains a full-time judge, while the others serve on senior status—semi-retired, but can still hear cases.
Reagan managed to move the court rightward somewhat, though his impact did not eclipse Carter’s. Five more new judgeships were added during Reagan’s presidency, so he got a few appointments there. In all, he appointed 10 judges to the 9th Circuit, a good-size number but not quite the outsize impact Jimmy Carter had. 5 of Reagan’s judges are still hearing cases, 2 full time. Notable among them is Alex Kozinski, a conservative with an independent streak commonly viewed as one of the intellectual giants of the 9th Circuit. Kozinski joined the court in 1985 at just 35 years of age. One of his former law clerks, Paul Watford, is now his 9th Circuit colleague and a likely Democratic Supreme Court nominee (he was one of three finalists for the nomination for the Scalia seat). Although conservative, Kozinski does find liberal results on occasions—for instance, he has no patience for prosecutorial misconduct: www.huffingtonpost.com/… The dissent was written by a conservative Clinton appointee. And according to this article, Kozinski sometimes votes with liberals on free speech: www.latimes.com/… But don’t be fooled—Kozinski is still a conservative, just somewhat less predictable than most. Also worth noting is Reagan elevated a 9th Circuit judge, Anthony Kennedy, to SCOTUS. (Ford had named Kennedy to the 9th Circuit.)
GHW Bush continued the slow rightward shift—he appointed four judges, all solid conservatives. Two have died and two continue to serve on senior status. Four judges of 28 total seats is not a large impact.
By 1993, when Bill Clinton assumed office, the 28 judges were appointed by: 1 Kennedy, 1 Nixon, 12 Carter, 10 Reagan, 4 GHW Bush. Plus some senior judges, including the other 3 Carter appointees. The three consecutive Republican terms had moved all courts rightward, but the huge number of Carter appointees made the 9th Circuit more resistant to that. And Bill Clinton was about to make his own dramatic imprint on the 9th Circuit—but often not in a way liberals would like, as we shall see.
Since 12 years had passed since Carter left office, some of his judges were getting up there in age and becoming eligible for senior status. 8 took it during the Clinton years, allowing a Democrat to name their successor. In all, Clinton named 14 judges, almost equaling Carter’s impact on the 9th Circuit. In addition to replacing the 8 Carter appointees, Clinton replaced the Nixon appointee with Kim Wardlaw, who has been mentioned as a possible Democratic Supreme Court nominee (albeit a less likely one than some others). He also replaced 5 Reagan appointees. Thus, by the end of his terms, the 9th Circuit was: 4 Carter, 4 Reagan, 4 GHW Bush, 14 Clinton, with two vacancies when Kennedy appointee James R. Browning and Reagan appointee Charles Wiggins took senior status. (Browning died in 2012 at age 94, having served 51 years on the 9th Circuit.) All 14 Clinton appointees are still serving.
We should, indeed must, note this: not all of Clinton’s appointees were liberal. Far from it. Richard Tallman, for instance, dissented from the Kozinski opinion criticizing prosecutorial misconduct. Tallman is a registered Republican appointed in a compromise with a GOP Senate, in particular Washington Senator Slade Gorton. When Bill Clinton wanted to appoint the liberal William Fletcher to the 9th Circuit, the GOP blocked him, of course, because he was a liberal. They added a spurious charge of nepotism—Fletcher’s mother, Betty Binns Fletcher, was also a 9th Circuit judge, a Carter liberal. Ultimately, to get William confirmed, Betty had to take senior status and be succeeded by Tallman. (Betty did not go quietly, though. Senior judges can hear as many or as few cases as they choose. And she largely maintained a full case load right up to her death in 2012. archive.seattleweekly.com/… Also, Gorton was defeated in 2000 by Maria Cantwell, who was easily reelected in 2006 and 2012.)
Other sources indicate that Clinton appointees Ronald Gould and Barry Silverman also tend to be conservative. The LA Times article linked above characterizes Clinton’s A. Wallace Tashima as an “ideological switch-hitter.” Johnnie Rawlinson (a black woman and ally of Harry Reid) tends to be conservative as well. She has sometimes been mentioned as a possible Democratic Supreme Court nominee, but I doubt that will ever happen—in addition to her ideological leanings, she’s the same age as Merrick Garland. Garland is about as moderate a judge as a Democrat will nominate. Rawlinson is to Garland’s right.
Frustratingly, there doesn’t seem to be a lot of specific information I can find about a lot of these judges. There was one source that listed several cases they’d all heard, but I cannot find it. These articles do give some indication: www.civilrights.org/… www.nytimes.com/…
Essentially, of Clinton’s appointees, Tallman, Gould, Silverman, Rawlinson, and Susan Graber are conservative or at least moderately conservative, while Marsha Berzon, Richard Paez, William Fletcher, Sidney Thomas tend to be more liberal. Wardlaw and Margaret McKeown, who also has been mentioned as a longer-shot SCOTUS possibility (note—I highly doubt either will get appointed), also lean left. Tashima, Raymond Fisher, and Michael Daly Hawkins tend to be relatively centrist, though more left than right, from what I can gather.
Back in 2009, fellow Kossack Seneca Doane wrote a diary assessing several Obama candidates to replace Souter. Seneca Doane was not a fan of Wardlaw, and strongly disliked Rawlinson, but thought McKeown would be decent: www.dailykos.com/… (this seat, of course, went to Sonia Sotomayor).
Two cases in particular are worth noting. In 2009, the Supreme Court heard the infamous case where a 13-year-old girl was strip-searched at school in a search for ibuprofen. This was an appeal from the 9th Circuit, where an en banc panel ruled 6-5 in the girl’s favor. (Note—because of its size, the full 9th Circuit hardly ever sits as one. 3-judge panels hear the case first, then 11-judge en banc panels can hear it if they choose.) The decision was written by Wardlaw, joined by Fisher, Paez, GW Bush appointees Milan Smith and Randy Smith, and Carter liberal Harry Pregerson. Dissenting were Hawkins, Gould, Silverman, Kozinski, and GW Bush appointee Carlos Bea. Not along party lines, as we can see. (SCOTUS ruled 8-1 against the strip search, but 7-2 granted immunity to the school officials. Clarence Thomas would have allowed the strip search, while John Paul Stevens and Ruth Bader Ginsburg would not have granted immunity.)
Also, in 2010, an en banc panel of the 9th Circuit upheld Obama’s “state secrets” claim to forbid lawsuits over the extraordinary rendition program, where the US seizes people it suspects of terrorism and has them shipped off to other countries or CIA “black sites” to be tortured. The vote was 6-5, with Fisher, Kozinski, Tallman, Rawlinson, Bea, and Consuelo Callahan (GW Bush) outvoting Hawkins, Paez, Thomas, and Carter liberals Mary Schroeder and William Canby.
Thus, by the end of Clinton’s terms, the 9th Circuit was still a left-leaning court, but had moved in a more centrist direction. Clinton got 14 appointments but his nominees were generally rightward of Carter’s, sometimes substantially so. Then George W. Bush came along, and of course nominated many conservatives. He got 7 appointments, replacing 2 of his father’s appointees, 1 Carter appointee, 1 Clinton appointee, filling the vacancies created by Browning and Wiggins, and replacing 1 more Reagan appointee. Notable among his appointees is the odious war criminal Jay Bybee, one of the torture memo authors. In a just world, Bybee would have been impeached. All of Bush’s appointees are varying degrees of conservative.
I would be remiss if I did not mention the notorious Newdow Pledge of Allegiance case, where attorney and outspoken atheist Michael Newdow sued to have the Pledge of Allegiance at his daughter’s school struck down as an unconstitutional endorsement of religion. The decision striking it down was written by Alfred Goodwin, a Nixon appointee, and joined by Reinhardt. We all know what came next. The religious right and the GOP had a fit, and the SCOTUS reversed the 9th Circuit unanimously—though not constitutional grounds. Kennedy joined the liberals to dismiss the case for lack of standing. Newdow was not married to the mother of their daughter, and the girl lived with her mother. The 5-3 ruling said that as the non-custodial parent, Newdow lacked standing.
President Obama
We now arrive at President Obama’s first term. By now, the Bush appointees had moved the 9th Circuit rightward and made it a distinctly less liberal court than it used to be. Liberal Stephen Reinhardt said he does not consider the 9th Circuit a liberal court: www.nytimes.com/...Nonetheless, the lasting effects of the Carter appointees meant that by 2009, the 9th Circuit was the only circuit with a majority of Democratic judges. A majority that President Obama could now expand.
When he took office, a new, 29th seat was created, having been re-assigned from the DC Circuit. The active judges were: 3 Carter, 2 Reagan, 2 GHW Bush, 13 Clinton, 7 GW Bush, with the new seat and a Reagan-appointed seat open.
To the new seat, Obama nominated the strong liberal Goodwin Liu. Predictably, the GOP blocked Liu, one of the very few leftist (as opposed to center-left) judicial nominations Obama made. Meanwhile, Hawkins and GHW Bush appointee Andrew Kleinfeld took senior status. Obama nominated federal trial judge Mary Murguia and Alaska Supreme Court Justice Morgan Christen to replace them. Obama ultimately filled the new seat with Jacqueline Nguyen, who made history as the first Vietnamese-American judge on the court, but who is far more centrist than Liu. Fortunately, all was not lost, as Jerry Brown put Liu on the California Supreme Court.
Meanwhile, GHW Bush appointee Pamela Rymer died, and Schroeder took senior status. Obama filled the seats with Paul Watford and Andrew Hurwitz. Hurwitz is notable for arguing Ring v Arizona before the Supreme Court, requiring the jury, not the judge, to find aggravating factors that would lead to a death sentence. The decision was 7-2, written by the notorious RBG.
Obama got two more nominees to the 9th Circuit: Michelle Friedland to succeed Fisher, and John Owens for the the seat vacated by a Reagan appointee back in 2004. The GOP voted against both, fearing that they could be SCOTUS-bound. Neither one has a clearly liberal background, though—Friedland even clerked for Sandra Day O’Connor, like Sri Srinivasan of the DC Circuit. Thus far, Watford, Hurwitz, and Christen appear somewhat left of Murguia and Nguyen, while it’s pretty early to assess Friedland or Owens.
Of Obama’s appointees, the most notable is Paul Watford. He is quite likely to end up on the Supreme Court if Hillary Clinton is elected. Currently 49, Watford could serve for 30-40 years. Watford, as mentioned, clerked for Kozinski, his now-colleague. After that, he clerked for Ruth Bader Ginsburg, who may also become his colleague. As a lawyer in private practice, he authored a brief challenging the three-drug cocktail used in Kentucky’s lethal injection procedure, in Baze v Rees. He also wrote one challenging the infamous Arizona immigration law, S.B 1070, which was motly struck down by SCOTUS, 5-3, in 2012, over an apocalyptic dissent from Scalia. It was in no small part for the latter reason that the GOP strongly opposed Watford when Obama nominated him—that and they knew he would be SCOTUS-bound. Nonetheless, Watford has earned much praise from conservatives, such as his old boss, Kozinski, who says that Watford is one of the judges where “I can’t tell how he’s going to rule ahead of time.” Watford wrote the decision striking down an LA law allowing the police to search the guest registry of hotels at random. The SCOTUS upheld that decision 5-4, Kennedy joining the liberals. Watford also voted to strike down a town ordinance regulating certain kinds of political signs as a violation of free speech. SCOTUS unanimously agreed with Watford, though they disagreed on the reasoning—Thomas wrote for the conservatives and Sotomayor, while Kagan wrote for herself, Breyer, and Ginsburg.
Watford has not always voted with liberals, such as the case where he voted against a death row inmate for filing a challenge too late. On the other hand, he voted against binding arbitration in a case that was appealed to SCOTUS, but was settled after Scalia’s death. Based on the available record, Watford is probably no liberal lion like Reinhardt or the late Thurgood Marshall, but would fit in with the current liberals on SCOTUS. Plus, he would bring some needed diversity to the Court—the only current black justice is Clarence Thomas, who of course is not representative of the mainstream black community, and usually votes against the interests of the black community. It is a good bet Watford will be nominated by Clinton if she wins, more likely as a successor to Breyer or Kennedy than Ginsburg, who would likely be replaced with another woman.
For more about Watford and other 9th Circuit judges, see: www.latimes.com/…
thinkprogress.org/…
www.afj.org/…
prospect.org/...
One final Obama-related note: he strongly considered Sidney Thomas for the SCOTUS seat to which he nominated Kagan. According to Jeffrey Toobin, Obama considered Thomas in no small part because he wanted to consider a non-Ivy candidate: Thomas was educated at the University of Montana. Thomas would doubtless have done a good job on SCOTUS, but of course Kagan has too.
Present Day
Currently the composition is: 19-9 Democratic, with one vacancy when Pregerson took senior status last December at age 92. 1 Carter, 2 Reagan, 11 Clinton, 7 GW Bush, and 7 Obama appointees currently serve full-time. Three conservatives will take senior status by the end of this year: Silverman, a Reagan appointee, and a GW Bush appointee. Obama has nominated Lucy Koh for the Pregerson seat. She is the first Korean-American woman to serve as a federal judge, and would presumably make a fine 9th Circuit judge. Her background does not make her ideology obvious, but as Obama rarely nominates true leftists, it is unlikely that Koh will be as far to the left as Pregerson. Fun fact: Koh is married to Mariano Florentino Cuellar, a California Supreme Court justice who will be a SCOTUS contender under any Democratic president.
Obama’s impact on the 9th Circuit is somewhat more complicated than on the 4th, 7th, and DC Circuits. He swung the 4th and DC dramatically leftward, while he got only one appointment to the 7th. To the 9th, he got 7 appointments—but as it’s a 29-member court, that’s less dramatic than his 7 appointments to the 15-member 4th Circuit are.
Also, Obama is the only post-Carter president not to appoint any outright conservatives to the 9th Circuit. His appointees appear to have done more to expand the centrist wing of the court than the left wing, though—they certainly cannot measure up to the liberalism of the Carter appointees, and are less liberal than some of Bill Clinton’s, too.
In some ways, this is not so different from what Obama did with any federal court. His appointees have generally been moderately liberal, and his 9th Circuit judges fit that bill. They have moved the court somewhat back to the left, but in the case of the 9th Circuit, that feels like less of a victory given the history of this court and the fact that it was already somewhat left of center when Obama assumed office (remember this was the only majority-Democratic circuit then. There are now nine majority-Democratic circuits).
2016
Regardless, we have an opportunity for more. Three conservatives are taking senior status, and if Hillary wins, she is unlikely to appoint conservative replacements. With a Democratic Senate and enough grassroots enthusiasm/demand, she might persuaded to appoint some true leftists, like Goodwin Liu, who at 46 could serve for decades. If there is any circuit where we could get some true leftists, rather than just moderate-leftists (who, it should be remembered, do rule our way the substantial majority of the time), it is probably this one. Let’s go find out.
P.S. It is another reminder of the long-lasting nature of judicial appointments that Jimmy Carter continues to hugely influence the 9th Circuit, 35 years after leaving office. Anyway, stay tuned for part 5 soon—the horrible 5th Circuit.