Bench Memos

Law & the Courts

Re: Improving the Ninth Circuit

In this post five months ago, I explained why it would be a mistake to write off the Ninth Circuit as a lost cause. Among other things, I discussed how the Ninth Circuit’s unique “limited en banc panel” mechanism means that a sizeable increase in the number of Republican appointees can dramatically improve Ninth Circuit law even if that number falls short of a majority.

Since that time, President Trump has appointed two judges to that court and has made or announced* five additional nominations, including four to seats previously held by appointees of Democratic presidents. On the downside, there was the fiasco in which the nomination of Ryan Bounds was withdrawn right on the cusp of a Senate floor vote.

In terms of admittedly crude numbers, here’s where things now stand: For its 29 active authorized judgeships, the Ninth Circuit now has 16 appointees of Democratic presidents, 7 appointees of Republican presidents, and 6 vacancies. This 16-7-6 configuration is only slightly changed from the 19-6-4 configuration when President Trump took office.

Yesterday, the Senate Judiciary Committee held hearings on the Ninth Circuit nominations of Eric Miller and Bridget Bade. The Senate Republican leadership is intent on confirming those nominations by year-end. That would result in a 16-9-4 configuration.

If and when the three recently announced nominations are confirmed, the Ninth Circuit will have 16 Democratic appointees, 12 Republican appointees, and 1 vacancy.

By my count, 8 of the 16 Democratic appointees are eligible to retire or take senior status. But who knows whether any will choose to do so any time soon?

* The three Ninth Circuit nominations that the White House announced on October 10 appear not yet to have been submitted to the Senate.

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