Trump’s hands are tied on 9th Circuit

Trump’s hands are tied on 9th Circuit
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If President Trump is going to break up the 9th U.S. Circuit Court of Appeals, he’s going to have to rely on Congress.

Trump this week said he was looking at ways to split up the California-based court, which ruled against his travel ban in February and has long been a target for conservatives.

“There are many people who want to break up the 9th Circuit,” Trump said in an interview with the Washington Examiner. “It's outrageous.”

Eighteen of the court’s 25 judges have been appointed by Democrats, and it has irritated the right over the years. 


Conservatives often point to the 2002 decisions in which the court said it was unconstitutional for the pledge of allegiance to include the words "under God." The Supreme Court later overturned that ruling. 

“Everybody immediately runs to the 9th Circuit. And we have a big country. We have lots of other locations. But they immediately run to the 9th Circuit. Because they know that's like, semi-automatic,” Trump added this week.

Despite Trump’s tough rhetoric, there is little he can do to reshape a court that handles about a third of the nation’s appeals. It covers California and eight other states including Arizona, Alaska, Nevada, Idaho, Oregon, Montana, Washington and Hawaii, as well as Guam and the Northern Mariana Islands.

“He can jawbone,” said Carl Tobias, a professor of law at the University of Richmond School of Law. “He can sign a bill if both chambers send legislation to him to reconfigure the court, but he can’t do it unilaterally. He can’t use an executive order to do it.” 

While Trump has the power to nominate judges to fill vacancies on the court, that’s about where his powers end.

There are four vacancies on the court now, but court watchers say that’s not enough to drastically shift its ideological balance.

“Given the size of 9th Circuit, in context four judges is not a lot,” said Ian Samuel, a Climenko Fellow and lecturer on law at Harvard Law School who clerked for Judge Alex Kozinski on the 9th Circuit and later Justice Antonin Scalia on the Supreme Court.

Any real ability to restructure the 9th Circuit lies with Congress, where Republicans have offered legislation to that end.

Bills in the House and Senate would break up the court and create a new 12th Circuit.

Under the House bill, the new court would cover Arizona, Alaska, Idaho, Montana and Nevada. The Senate version also includes Washington.

In a radio interview Thursday, Sen. Ted CruzRafael (Ted) Edward CruzThe Memo: Texas could deliver political earthquake Harris to travel to Texas Friday after polls show tie between Trump, Biden Cruz wants donors to repay K he loaned to his 2018 campaign MORE (R-Texas) said breaking up the court is “certainly a possibility.” 

“I think that’s a topic I can easily see the [Senate] Judiciary Committee taking up, and we’ll have to see whether we have to votes to do that or not,” he said on “The Jack Riccardi Show.”

But the chances of getting such a bill through the Senate are likely zero unless the legislative filibuster is done away with.

Republicans would need eight Democrats to back the legislation.

“I don’t know if we could get a Republican bill through that says the sky is blue in the Senate because of the 60-vote rule there,” said Rep. Trent FranksHarold (Trent) Trent FranksArizona New Members 2019 Cook shifts 8 House races toward Dems Freedom Caucus members see openings in leadership MORE (R-Ariz.), who was more optimistic about the chances of legislation passing the GOP-controlled House.

Even if Congress were to get a bill to Trump, signing it might not solve conservative problems.

Many issues would still be sent to the 9th Circuit court even if a new 12th Circuit were created.

“If we stay with idea of geographically based circuits its hard to imagine dividing the circuit in a way that solves the problem the administration is having, which is that the judges of this court don’t think the administration’s actions are lawful, but those judges are still going to be there,” Samuel said.

Rep. Jerrold Nadler (D-N.Y.) said the legislation would essentially create another liberal court.

“It wouldn’t change the nature of decisions,” he said.

“When you really get down to it and you think about it, it’s not going to serve their purpose. The court is what it is. If you want to make the court more conservative, appoint some conservative judges, which is what they’re going to do.”