This article originally appeared in the Los Angeles Times on September 11, 2016.
The U.S. 9th Circuit Court of Appeals, based in San Francisco, has long been the court conservatives love to hate. Rush Limbaugh calls it the “Ninth Circus.” Right-wing bloggers refer to the “Nutty Ninth.” There’s even an illustrated children’s book titled “Help! Mom! The Ninth Circuit Nabbed the Nativity.”
The court’s reputation for leftist judicial activism is so legendary that conservative groups mount perennial efforts to split up the 44-judge court, the largest in the nation. In 2011, Newt Gingrich called for abolishing the “anti-American” circuit outright.
The past eight years of appointments by President Barack Obama could have set the court up for another generation of dual-barreled progressivism — and commensurate conservative loathing. But that’s not how it seems to be turning out. Instead, the 9th Circuit seems to be growing more centrist.
The court earned its flower-child reputation fairly. In the late 1970s, President Carter and a Democratic Congress nearly doubled the number of judges on the court. Carter’s appointees included “liberal lion” Stephen Reinhardt, who in recent years struck down Arizona’s “English-only” constitutional provision and California’s Proposition 8 banning same-sex marriage. Harry Pregerson, another Carter appointee, held that the federal government can’t interfere with state laws legalizing medical marijuana and informed the Senate during his confirmation hearing that between the law and his conscience, “I would follow my conscience.”
By 1980, Carter had appointed 15 of the court’s 23 judges. They included “some of the most liberal judges ever, to any court,” former Chief Judge Alex Kozinski once told the New York Times.
During the next 30 years, the 9th Circuit would continually draw the right’s enmity with high-profile, left-wing decisions. Among them: It ruled that the Pledge of Allegiance is unconstitutional for its use of the phrase “under God,” that individuals have no constitutional right to own guns and that state laws banning assisted suicide violate the 14th Amendment. The Supreme Court overturned each.
Some of the 9th Circuit’s most controversial rulings have related to criminal law, especially the death penalty. In 1992, it waged an all-night duel with the Supreme Court over the execution of convicted murderer Robert Harris, issuing stay after stay, each one reversed by Supreme Court justices until they ordered the 9th Circuit to stop. Between 2006 and 2009, the 9th Circuit threw out the capital sentence of convicted murderer Fernando Belmontes three times, with each decision overturned by the Supreme Court. In 2011, when the Supreme Court once more reversed the 9th Circuit on a capital punishment case, it accused the appeals court of exhibiting “judicial disregard” for “sound and established principles” of law — which is about as catty as it gets in the marbled hallways of the federal appellate judiciary.
But all that is changing. The last of the Carter-appointed judges are now retiring, or at least taking partial retirement (so-called “senior status”). Pregerson, 92, went “senior” in 2015. Reinhardt, 85, is the only active Carter-appointed judge left on the court.
At the same time, Obama’s appointees have been less predictably left-leaning in their judgments, particularly on criminal matters. Nearly 60% of Obama’s 9th Circuit appointees are former criminal prosecutors (a percentage that will increase if Lucy Koh, nominated in February, is confirmed). By contrast, about 30% of President Clinton’s appointees and 20% of Carter’s appointees served as criminal prosecutors.
This shift is notable because lawyers who work for the government’s enforcement wing, in particular criminal prosecutors, have a conceptually different approach to law than other lawyers. Many private litigators, public interest lawyers and some government lawyers (like public defenders) often further their clients’ interests by looking for holes in established law and ways to challenge legal precedents. Prosecutors, by contrast, generally focus on enforcing precedents and plugging holes: After all, their client is the government, the embodiment of established law.
This conceptual distinction can extend to judicial philosophy. Many Carter judges see their judicial responsibility as fostering justice overall, especially for individuals — even if that means working creatively around legal precedents. In contrast, many Obama appointees see a judge’s job as accurately applying established law as they understand it, even if doing so may lead to individual injustices.
Whether attributable to their prosecutorial backgrounds or not, Obama’s appointees are arriving at some conservative outcomes. Former prosecutor Jacqueline Nguyen, for example, wrote an opinion approving Royal Dutch Shell’s oil-drilling plan off the coast of Alaska against a challenge by environmental groups under the Endangered Species Act, and over a dissent from Carter appointee Dorothy Nelson. Nguyen also dissented in another case to say that a police officer might reasonably have used his Taser on the neighbor who was 40 feet away from an arrest taking place.
Likewise, Mary Murguia, another former prosecutor, joined two Republican-appointed judges in holding that cancer-causing diesel exhaust doesn’t qualify as the kind of health-endangering “hazardous waste” that would allow citizens to sue a polluting rail yard. Yet another former prosecutor, Paul Watford, who is frequently mentioned for a Supreme Court seat, dissented from a decision favoring a capital punishment prisoner. Even though he didn’t like the result, he said, Watford concluded binding precedent meant the inmate filed his death penalty challenge too late.
John Owens, also a former prosecutor, wrote the recent opinion holding that Jaycee Dugard, who’d been kidnapped and sexually abused for almost 18 years, couldn’t sue the U.S. government for failing to effectively monitor her kidnapper, who was on federal parole when he took her. Owens wrote that while “our hearts are with Ms. Dugard, the law is not.” That’s not to say Obama’s appointees are conservatives, or that they have made the court a conservative one. They aren’t, and they haven’t. The 9th Circuit still has the second-highest percentage of Democratic appointees among the circuit courts and still issues decisions celebrated by the political left. It has, for example, ruled in recent years that the 2nd Amendment does not confer the right to carry a concealed weapon and that undocumented immigrants who are arrested have a constitutional right to a bond hearing.
But whereas the Carter judges reliably took left-leaning positions, the Obama judges are less predictable. That’s a big difference given the 9th Circuit’s mythic liberality. Yes, it still has more of its rulings overturned by the Supreme Court than other circuit courts, but that isn’t because of an extreme political bent; rather, it’s because of the large number of cases the court hears and the willingness of states within its jurisdiction to experiment with novel laws. The 9th isn’t such an outlier any more either: The 11th Circuit, based in Georgia, is now more heavily Democratic. The 4th Circuit, based in Virginia, has further left-leaning Obama appointees.
Ultimately, because the 9th Circuit has grown more centrist, it’s the next president’s picks that could have an outsized effect. A slew of strong conservative or liberal appointees could noticeably move the court’s political median and renew existential battles over its future. But for now, the 9th Circuit can take a well-deserved breather from its three-ring reputation.
Ben Feuer is the chairman of the California Appellate Law Group LLP*, a business appellate law firm in San Francisco. He served as a law clerk on the 9th Circuit Court of Appeals.
*In July 2022, the California Appellate Law Group was renamed the Complex Appellate Litigation Group.
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