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Trump has opportunity to flip the 9th Circuit, so why isn’t he? (Update)

Trump has opportunity to flip the 9th Circuit, so why isn’t he? (Update)

Trump has three qualified and quality nominees for vacancies who have not been renominated. That they are opposed by Feinstein and Harris is a feature, not a bug, of the merits of their confirmation.

Bringing the federal judiciary back to the center has been one of the great successes of Trump’s first two years in office.

As mentioned many times before, Trump was presented with an opportunity to realign the federal judiciary for a generation given the large number of Court of Appeals and District Court vacancies when he took office. Judicial nominations, particularly to the Supreme Court, were a core Trump campaign promise and a huge motivator for Republicans in 2016.

Despite unprecedented Democrat obstruction which has strung out not only judicial but other nominees, Trump has moved a substantial number of nominees through the pipeline to confirmation.

The obstruction included withholding blue slips, and insisting on 30 hours of floor “debate” time for each nominee, not for any other purpose than slowing down the process. Then Senate Judiciary Chair Chuck Grassley finally brought the blue slip policy back to where is was intended, and refused to delay the process indefinitely otherwise the refusal to return a blue slip would turn into a de facto filibuster (which the Democrats eliminated in 2013 for appeals and district court nominees). There has been noise about lowering the floor debate time period (since these nominees almost never are actually debated), and there’s an indication such a rule change may take place in the next month or two.

While Trump and Senate Republicans, have made progress, they have not kept up with the pace of vacancies:

However, Democrats have held up enough nominations that there are more judicial vacancies now than when Trump was inaugurated two years ago.

In January 2017, there were 17 open seats on federal circuit courts and 108 vacancies on federal district or specialty courts, according to the Judicial Crisis Network, a conservative political group that monitors judicial nominations. Today, it’s 15 circuit court vacancies and 149 open seats on district or specialty courts.

“There are now more vacancies than there were on Inauguration Day,” said Carrie Severino, chief counsel and policy director for the Judicial Crisis Network. “Time for Democrats to stop the bullying and obstruction, and confirm the judges.”

I lamented earlier this month that Trump was slow to renominate nominees Democrats refused to hold over from the last Congress, but since that post, Trump has announced 51 nominees to be sent to Congress.

That’s good.

But there’s a potential bad here.

Carrie Severino, chief counsel and policy director to the Judicial Crisis Network, writes in National Review that Trump appears to be playing footsie with Democrats when it comes to the 9th Circuit, What Ever Happened to Those Ninth Circuit Nominees?

Last week the White House announced the re-nomination of 51 judicial nominees, including a dozen circuit court nominees. Conspicuously absent from this list were the three judges that President Trump had nominated to the Ninth Circuit from California in October:  Patrick BumatayDaniel Collins, and Ken Lee.

All three are outstanding, experienced, and have demonstrated a commitment to the rule of law. Bumatay and Lee have longstanding ties to the Federalist Society.  Collins is a former law clerk to the late Justice Antonin Scalia.

During the first two years of his administration, President Trump gradually filled nearly all of the circuit court vacancies that he inherited, along with additional vacancies that arose those first two years. But for 21 long months, the three California seats remained vacant as the White House attempted to work with Democratic Senators Dianne Feinstein and Kamala Harris to identify nominees.  And for 21 months, the two California senators dragged their feet….

Severino indicates there might be a deal to be struck with California Senator Dianne Feinstein on nominees agreeable to her, but why play footsie with DiFi?

This begs the question: why in the world would the White House agree to such a deal?

There are currently six vacancies on the Ninth Circuit (three in California, one in Oregon, one in Washington state, and one in Arizona).  Confirming judges to these six seats would bring the balance of active judges to 13-Republican-appointed and 16-Democrat-appointed—within just two seats of a flip.  This, on the “Ninth Circus”—the most notoriously-liberal appellate court in the land.

Reports are that the California senators are particularly focused on dropping Bumatay from the deal.  Bumatay, 40, is a federal prosecutor from San Diego, presently on detail to Main Justice.  Bumatay, a Filipino, would be the first openly-gay judge to serve on the Ninth Circuit.

Of course, it makes perfect sense that Feinstein and Harris would want to ditch Bumatay: the last thing they want is an originalist minority on the bench.

Moreover, agreeing to Senator Feinstein’s deal would just reward her bad behavior.  It would show other senators from blue states that you just need to keep biding your time and dragging out the process.  Such is a winning formula for keeping the president from fulfilling his constitutional duty to nominate judges.

The Wall Street Journal editorial board calls it “a bad judges deal“:

Ms. Feinstein and the White House counsel’s office have been pen pals on this for some time. In a November letter to new White House counsel Pat Cipollone, Ms. Feinstein and Ms. Harris requested “that the White House work with us to reach an agreement on a consensus package of nominees.” The Democrats want to pick one name from the White House list, one from their own, and a third consensus nominee.

Why Mr. Cipollone or the President would agree to this or any other deal with these Senators is a mystery. The hope seems to be that a White House concession would somehow produce less resistance to Mr. Trump’s nominees. And this would be useful if the President gets the chance to replace, say, Justice Ruth Bader Ginsburg on the Supreme Court.

It’s hard to believe someone could think this is plausible. Ms. Harris is running for President and will oppose any Trump nominee to the High Court. Ms. Feinstein was once more reasonable, but she and Ms. Harris were two of the worst mudslingers on the Judiciary Committee that smeared Brett Kavanaugh.

A concession to them now on nominees would rightly be seen as political weakness. It would concede influence that neither Senator has earned and set a precedent for other Democrats who would demand similar consideration. The result would be nominees who aren’t nearly as qualified, or as originalist in their thinking, as Mr. Trump’s nominees have been.

Paul Mirengoff at Power LIne notes that a chance to transform the 9th Circuit is at stake:

What on earth is the administration thinking? Feinstein and Harris have no power to prevent the confirmation of Bumatay, Collins, and Lee. And the Ninth Circuit needs all three. Remember, this is hands down the most left-wing appeals court in America. It has been instrumental in blocking key Trump administration initiatives.

The Ninth Circuit needs to be transformed. It won’t be transformed by adding one conservative, one moderate and one leftist handpicked by Feinstein and Harris.

Trump has three qualified and quality nominees. That they are opposed by Feinstein and Harris is a feature, not a bug, of the merits of their confirmation. Renominate them now.

Don’t pass up this opportunity.

UPDATE 1-30-2019 10:30 p.m. Eastern

Trump heard the conservative media outcry, nominates three judges for 9th Circuit

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Comments

THIS is ridiculous

it is unprecedented how a Republican president and senate was stonewalled by the minority D-party

all these vacancies should have been filled (or nearly all) within Trump’s first 2 years

completely gutless the whole lot of them

THIS is almost getting to the point of why even bother to vote these fuckers in for when they do get in with numerical advantages – they still barely get anything done

    casualobserver in reply to fishstick. | January 30, 2019 at 12:59 pm

    Help me out. I’m having a hard time remembering when the GOP honored their some of their more prevalent promises when they were in power. Can you refresh my memory?

    I’ve always thought the GOP had generally better ideas about governance and were sh*tty at politics. The Dems have progressively (no pun intended) had bad ideas and by comparison are MASTERS at the political game. Of course, having media on your side helps. And in the past few decades having the entertainment complex so fully on your side helps too.

    jayzea in reply to fishstick. | January 31, 2019 at 4:21 pm

    That’s because the deepstate is real. They made us believe there’s a two party system when they were all on the same part till now. Now there’s a majority on the senate of good guy’s. there wasn’t a majority before last election.

I suspect that the President would accomplish much more were he not fighting the Republicans as well as the Democrats.

    JusticeDelivered in reply to Anonamom. | January 30, 2019 at 11:12 am

    The beltway is truly a cesspool, yes a swamp is better than a cesspool. For over two decades I spent 2-3 months a year in Washington. During that time I knew some honest people, I also saw plenty change. Beltway culture is very corrosive.

    Even with all Trump’s business experience, he had no idea of what he was getting into. He is not a politician, that is good for us, but perhaps bad for him.

    MarkS in reply to Anonamom. | January 30, 2019 at 6:44 pm

    This is not fighting Republicans, it capitulating to the demands of the Democrats. This lunacy rises to the level of a 25th amendment remedy

The specter of the GOPe as much as anything. It’s now very clear they don’t give a rat’s a** about governing. They care about having power and that’s about it.

Connivin Caniff | January 30, 2019 at 10:16 am

It’s like a lot of other things he doesn’t do that frustrate his supporters. Why didn’t he shut down the government when he had Republican majorities? Why doesn’t he order the Acting Attorney General to go after the myriad D’Rat/Swamp criminals who are thumbing their noses at all of us? Why did he appoint Wray and not fire Rosenstein? Why can’t he hire advisers who at least occasionally view and listen to Levin and Hannity so that he can back up his great natural impulses with equally great law and fact arguments? Tweeting to the world is not ordering change, which is his complete Presidential right to do. Talk big, do nothing properly. Mensch or mouse? Very frustrating.

Despite the media caricatures, I have observed that DJT has respect for our government structure and process. He’s not a tyrant or would-be dictator, nor is he impulsive. He is well-versed in the history of our country, and well aware of the problems involved in establishing precedents that override the various brakes built into our system.

He picks his battles.

He also listens to us, so if we tell him it’s time to take action, we may well see a response.

    Connivin Caniff in reply to Valerie. | January 30, 2019 at 11:02 am

    We’re not asking him to break, violate or stretch the law. We are asking him to honor his oath and carry out the law. He has a good heart that instinctively wants to serve and protect the Constitution and the citizens of this great Country, but something, maybe horrible, underhanded advice, is thwarting his best talent – winning! He can do it within and pursuant to the law. That’s the precedent he must establish, because it seems he is our only hope. Hard to believe but whom else to turn to?

    txvet2 in reply to Valerie. | January 30, 2019 at 3:09 pm

    If not this battle over lifetime appointments that literally determine the future of the country, now that we’ve allowed the courts to become an appointed oligarchy, then what hill matters? The border? That’s in the hands of the judges, as is every other battle you might choose.

      SDN in reply to txvet2. | January 30, 2019 at 5:21 pm

      Trump confirms judges in the Senate? If Vichy Mitchy won’t push, no judges go through. Call Vichy.

        Ragspierre in reply to SDN. | January 30, 2019 at 7:15 pm

        But you are not dealing in reality…or with the Prof.’s question.

        “I lamented earlier this month that Trump was slow to renominate nominees Democrats refused to hold over from the last Congress, but since that post, Trump has announced 51 nominees to be sent to Congress.”

        Finally. Just days ago.

        “Despite unprecedented Democrat obstruction which has strung out not only judicial but other nominees, Trump has moved a substantial number of nominees through the pipeline to confirmation.”

        Not really true. The Senate has moved them through the pipeline. AFTER T-rump nominated them. Giving REALITY its due.

        So, again…

        Who is the POTUS? Who has the power to nominate? Why isn’t he doing it?

        When T-rump fails to nominate, how is that the fault of anyone BUT him?

        Step up to the questions.

I always thought we lived in a Republic, not an autocracy.

“Trump has opportunity to flip the 9th Circuit, so why isn’t he?”

Oddly, I don’t see anyone dealing honestly and directly with the question posed.

I DO see a lot of excuses, blame-shifting and apologia.

Who is the POTUS? Who has the power to nominate? Why isn’t he doing it?

When T-rump fails to nominate, how is that the fault of anyone BUT him?

    JusticeDelivered in reply to Ragspierre. | January 30, 2019 at 11:20 am

    Rags-Rump, do you have a clue, even the slightest inkling of how things work in the Beltway? There are hordes of insider swamp dwellers doing their best to undermine Trump.

      Who is the POTUS? Who has the power to nominate? Why isn’t he doing it?

      When T-rump fails to nominate, how is that the fault of anyone BUT him?

      Personal attacks on me are not honest answers on point.

      Try showing some intelligence and honesty.

        Colonel Travis in reply to Ragspierre. | January 30, 2019 at 1:02 pm

        Try showing some intelligence and honesty.

        I can’t be the only one who laughed at this.

          Ragspierre in reply to Colonel Travis. | January 30, 2019 at 1:20 pm

          I know. I laugh at the psychopath a good deal, too. Land mines and “swarms of drones” always reduces me to hails of laughter.

          JusticeDelivered in reply to Colonel Travis. | January 30, 2019 at 8:53 pm

          Rags will no doubt be amazed when he sees illegals being identified and tagged by drone swarm technology. Expect to see shipping container based supercomputer clusters along the border to coordinate drones and to process machine vision in real time.

          When that time comes, we can expect to see Rags-Rump hopping up and down mad when his illegal relatives are caught red handed.

          Ragspierre in reply to Colonel Travis. | January 30, 2019 at 10:08 pm

          Yeah, the Scots-Irish will be mowed down in their thousands.

          You are a psychopathic nutter.

    Rags is on to something! The very notion that Trump, with an increased majority in the Senate, would even entertain the notion of placating the Democrats on the Judiciary Committee is beyond absurd. Does Trump think that kissing Feinstein’s butt is gonna to get her to vote for the wall? Seriously, Trump losing his mind by betraying his base to appease his enemies for a second time in weeks.

The most likely answer is that Trump was informed that swamp dwelling Republicans would block those nominations. These swamp dwelling Republicans have no intention of making the 9th Circuit more conservative.

    Ragspierre in reply to dystopia. | January 30, 2019 at 11:44 am

    Support for your wild speculation?

    How does what COULD possibly be prevent Duh Donald from gutting up and nominating good nominees?

    It doesn’t in reality. Does it?

It’s hard to believe someone could think this is plausible.

Yes indeed, rampant silliness. But let’s flog it anyway.

Fake speculation joins fake news.

I do like that name, “Judicial Crisis Network.” I suppose all the good names, like “Chicken Little Coalition,” were already taken.

This smacks of Jared Kuschner who is also negotiating with the Koch brothers to strategize amnesty.

MaggotAtBroadAndWall | January 30, 2019 at 12:26 pm

If he has the GOP votes to confirm the nominees, I can’t even imagine why he is considering a deal with Harris and DiFi. They oppose and obstruct virtually everything he does. Whatever they are dangling in front of him – or that he is dangling in front of them – can’t be as valuable for conservatives/originalists as flipping the 9th Circuit.

I don’t get it.

    You hit it solid with your first sentence: “If he has the GOP votes to confirm…”

    It costs Trump nothing to extend an olive branch on the remaining 50 nominees. You can always be nice before you’re nasty, but you can’t be nasty, then switch to nice. So I suspect the sequence of events will metaphorically go like this.

    Trump: I’m listening to your input on judicial nomination. If you don’t want these three, who do you want? Oh, and I sent 50 nominees your way.
    DiFi and Harris: (Votes down every nominee and demands 30 hours debate, but they pass anyway)
    Trump: Well, I tried. Now I will nominate these well-qualified judges, and you two missed out on the deal. If you don’t give me anything, you don’t get anything.

      Ragspierre in reply to georgfelis. | January 30, 2019 at 1:17 pm

      But it is being reported that he’s fishing for a deal where he nominates one, the Deemocrats nominate one, and they pick a “consensus” nominee.

      Can’t say that’s gospel.

      But WHY not just jock up and nominate some great candidates and let the process produce what it will? The process has worked pretty stinking well thus far, right?

        If this was any other Republican, I would expect a ‘deal’ would go “The Dems get everything they wanted and more, while the Republicans take the blame.” Seriously.

        Trump is not like every other Republican (a fact that I am learning to appreciate in an odd way).

        He wins if the Dems accept the deal, because the Dem base will throw a massive fit at their people ‘caving’ to the Evil One, even if it is over just one justice, and it (most probably) should come with Dem good behavior in the Senate *first* before the reward later.

        He wins if the Dems reject the deal, because it shows him as willing to deal and the Dems as obstructionist, while still getting his nominees through.

      Trump wasn’t elected to play footsie with the Democrats, he was elected to defeat everything they stand for. If we wanted a nice Republican we could’ve voted for Jeb

I can’t even imagine why he is considering a deal with Harris and DiFi.

The articles don’t say that he is. The writers have no idea what’s going on re appointments, and so are substituting a rather silly speculation for fact. Then they assert that their speculative scenario would be improbable, mysterious, and Not A Good Thing. These assertions are doubtless true, but that hardly supports the speculation itself.

buckeyeminuteman | January 30, 2019 at 12:58 pm

Encouraging the ATF to outlaw bumpstocks
Agreeing to hold off on the SOTU
Caving on re-opening the gov’t for 3 weeks
Holding off on 9th Circus judges

I’m starting to have my reservations…

I’ve seen about six different conservative sources running this story in the last eight hours. Has anyone asked the White House? At all?

    tom_swift in reply to JBourque. | January 30, 2019 at 2:31 pm

    It’s based on rock-solid stuff, like “reports”. A step down from “sources close to the White House” but apparently all they’ve got.

    A statement from those wet blankets at 1600 Pennsylvania Avenue would just ruin all the fun.

      txvet2 in reply to tom_swift. | January 30, 2019 at 3:16 pm

      Easy enough for him to debunk. All he has to do is announce the renomination of the three he’d already selected.

        So it’s on him to debunk conservatives’ hair-trigger paranoia over the issue.

        I will completely understand if this story pans out. If. But, I’m just as annoyed with conservatives that see the President as their monkey as with the liberals happy with taking any shortcut imaginable to remove him from office without regard for voters or elections.

blue slips are not in the constitution and elections have consequences as obama reminded us over and over so why is there a democrat list and a republican list and and a consensus list. We know from bitter experience about consensus nominees.

Despite unprecedented Democrat obstruction which has strung out not only judicial but other nominees, Trump has moved a substantial number of nominees through the pipeline to confirmation.

I think this is the weak point of this column. DJT has also faced unprecedented Republican obstruction. That doesn’t leave him a whole lot to work with.

Strategy is everything.
If you explain it, you reveal it.

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