President Trump May Be About To Flip The Ninth Circuit

One area in which the election of Donald Trump has paid off in spades is that of judicial appointments. So far, the president has had two Supreme Court appointments and numerous picks for lower courts. Now, a series of appointments may be about to remake one of the most liberal federal courts in the country, the Ninth Circuit.

The Ninth Circuit Court of Appeals has the jurisdiction for the states of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington as well as the territories of Guam and the Mariana Islands.  The Ninth Circuit is infamous among conservatives for its controversial decisions and being one of the most overturned courts in the country by the Supreme Court.  

Yesterday, the White House announced the appointment of seven new judges. Three of these new judges are destined for the Ninth Circuit while the other four will go to the US District Court for the Central District of California.

Two of the new nominees to the Ninth Circuit, Daniel P. Collins and Kenneth Kiyul Lee, were appointed last year and blocked by Democrats. The third appointee is Daniel A. Bress, who is being nominated to a federal judgeship for the first time. All three appointees are considered to be experienced constitutionalists.

The third appointee from last year, Patrick J. Bumatay, was shifted to the California Central District along with Stanley Blumenfeld, Jeremy B. Rosen, and Mark C. Scarsi. Bumatay is an openly gay Filipino-American whose appointment drew fire from California Democrats Dianne Feinstein and Kamala Harris. His renomination to a lower court represents a small concession to his opposition.  

The appointments came after numerous conservative outlets had criticized the president for slow-walking appointments to the Ninth Circuit. Earlier this month, President Trump renominated 51 appointees from last year but the Ninth Circuit nominees were absent from the least, fueling speculation that the president had made a deal with Sen. Feinstein.

The Ninth Circuit currently has six vacancies. If the three appointees are confirmed by the Senate, the balance of the court will be 13 Republican-appointed and 16 Democrat-appointed judges. Although judges do not always rule in accordance with the wishes of their party, more Republican-appointed judges would bring balance to a court that is considered extreme and temper some of its rulings.

It is possible that two more appointments to the court could give conservatives a majority on the Ninth Circuit. This does not mean that all cases coming through the Ninth Circuit would be heard by a conservative majority, however. Some cases are heard by a single judge or a three-judge panel. Others are heard by an en banc court, which usually means that all judges hear the case. Due to the large size of the Ninth Circuit, however, en banc cases are heard by a panel of 11 randomly selected judges, which could give Democrats a majority.

The current crop of appointments still has to be confirmed by the Senate, however. Democrats removed the filibuster for appeals and district court nominees in 2013, but there are still ways to slow the confirmation process. Last year, Democrats insisted on 30 hours of floor debate and withholding blue slips, approval of judicial appointees by their home state senators. In 2018, Chuck Grassley, the Republican chairman of the Senate Judiciary Committee broke tradition by holding hearings for appointees that did not have a blue slip from either of their state’s senators. This makes it more difficult for the opposition party to block nominees.

Much of Donald Trump’s presidency has been a mixed bag for conservatives, but, giving credit where credit is due, his judicial appointments have shifted the balance of the federal judiciary back toward the Constitution and the rule of law. That will be a legacy that lasts long beyond President Trump’s tenure and it is a very good thing for the country. 

Originally published on The Resurgent

Are Conservatives Tired of Winning Yet?

As a candidate, Donald Trump promised Republicans that “We are going to win so much that you may even get tired of winning.” Over the past year, I’ve noticed that the president’s supporters and conservative critics don’t seem to share the same definition of “winning.”

A few times recently the different views of winning have come to the surface. When Donald Trump tweeted, “Why would Kim Jong-un insult me by calling me ‘old,’ when I would NEVER call him ‘short and fat?’ Oh well, I try so hard to be his friend - and maybe someday that will happen,” Trump supporters erupted in cheers and celebrations on social media. Several lists of Trump’s accomplishments making their way around the internet, such as this one on Conservapedia, point out the areas where Trump supporters believe he is winning.

From my analysis, President Trump’s accomplishments seem to fall into three main categories. First is the appointments of conservative jurists to positions throughout the judiciary. Second, Trump has used his executive authority to enact a number of promised reforms. Finally, Donald Trump uses his “bully pulpit” to fight back. The duration and effect of these accomplishments varies wildly.

In my view, President Trump’s most important and – so far – only lasting accomplishment has been his effect on the federal judiciary. The appointment of Neal Gorsuch to the Supreme Court is only the tip of the iceberg. Working with Majority Leader Mitch McConnell, who many Trump supporters view as an establishment foe, Trump had appointed 44 federal judges and had eight confirmed by August. These conservative judges will have a lasting effect on the judicial branch.

The same cannot be said of Trump’s executive actions. Many of President Trump’s executive actions overturn President Obama’s executive actions. A successor could erase President Trump’s executive legacy just as easily.

The quality of President Trump’s executive actions varies as well. His executive actions range from the excellent, such as cutting bureaucratic regulations and reinstating the Mexico City policy to ban federal funding for abortions in other countries, to the ineffective, such as his travel bans that would likely have no effect on fighting terrorism.

Some of Trump’s executive actions, though they fulfill campaign promises and are applauded by his supporters, are actually harmful to the country. In one of his first acts as president, Trump withdrew from the Trans Pacific Partnership. The lack of American participation did not kill the trade deal, however. Other parties to the treaty are continuing to move forward on the agreement. If the deal goes forward without the United States, it will be American businesses, workers and consumers who lose.

The third category of Trump accomplishments is the most meaningless and illusory. Trump supporters love his snarky tweets and insults. They like the fact that he fights back and consider this an accomplishment. Essentially, Trump’s tweets and insults make Republicans feel good about themselves.

The problem is that Trump has the opposite effect on the rest of the country. An ABC News poll found that 70 percent of the public thinks that Trump does not act presidential and 68 percent don’t see him as a positive role model. The president’s behavior is now directly linked to electoral losses in which voters say that they are voting for Democrats specifically because they oppose Donald Trump.

Another commonly cited accomplishment is the surging stock market. While stocks have hit record highs under Trump, they did the same under Obama. In fact, a look at the stock market over the past 10 years shows that the market has been climbing since the end of the Great Recession in 2009. Supporters have difficulty pointing to any specific Trump policy change that could explain the surging market since Republicans have scored so few victories on fiscal and economic policy.

On the other hand, my definition of “winning” relies heavily on legislative victories that would be difficult for Democrats to reverse. As the Trump Administration prepares to close out its first year and enter a midterm election year, it has not scored a single legislative victory.

The repeal or reform of Obamacare would have been a major legislative victory since Republicans had been campaigning against the federal health law since 2010. Donald Trump campaigned against Obamacare as well, but when the chips were down, the president’s erratic behavior and attacks on Republican senators almost certainly contributed to the reform effort’s demise.

Likewise, Trump began the tax reform effort with a war against Sen. Bob Corker (R-Tenn.), a member of the Senate budget committee. Trump insisted that, in contrast with conservative fiscal doctrine, that the tax reform not lower the rates of the wealthiest taxpayers. The top 20 percent of taxpayers pay 95 percent of taxes per the Office of Management and Budget, but taxpayers in the top bracket won’t get a lower rate, if tax reform actually becomes law, thanks to President Trump.

While Trump supporters may argue that the president has accomplished more than any president except FDR, most Americans understand how little has been done in the past year. Without the passage of a single piece of legislation that is part of the Trump agenda, Republicans seeking reelection have few accomplishments to run on. As a result, many Republicans are deciding that 2018 is a good time to retire.   

Donald Trump has not ushered in an era in which conservatives have grown tired of winning. In fact, winning has been in short supply over the past year. What President Trump has lacked in winning, he has more than made up for in whining, but that makes a poor substitute.

Originally published on The Resurgent