Liberals face more conservative courts to fight Trump’s policies

Progressive groups and Democratic attorneys general will face more conservative federal appeals courts in challenging Trump administration policies than at the start of his first term.

Half of the 12 geographic district courts have a majority of judges appointed by Republican presidents, up from a third eight years ago. And some of the traditionally most liberal panels, including the San Francisco-based U.S. Court of Appeals for the Ninth Circuit, lean right and have only a slim liberal majority.

The shift leaves liberal litigants hoping to challenge Trump policies without the same safe harbor that conservatives had in the Fifth Circuit during the Biden administration. Two-thirds of what is considered the most conservative appeals court in the country were appointed by Republican presidents. The New Orleans-based district also includes trial courts with single-judge divisions that allow for judge shopping.

Progressive litigators “likely want to stay away from the federal courts” under a second Trump administration, said Harvard professor Maya Sen, who has written about ideology in the federal judiciary.

Armed with a likely Republican-controlled Senate, Trump could also have a chance to overhaul even traditionally liberal district courts, which now have narrower scope, as judges appointed by Democratic presidents retire or die over the next four years.

“I don’t think it paints a particularly rosy picture for left-leaning advocates,” Sen said.

Conservative change

The U.S. district courts have moved to the right overall since January 2017, before Trump appointed dozens of his judges.

President Joe Biden has failed to repeat his success, leaving the appeals courts with more Republican-appointed judges than Democrat-appointed judges and a stronger conservative influence even in traditionally liberal circles.

Before Trump took office, there were 81 appellate judges appointed by Democratic presidents and 68 by Republicans, as well as some vacancies. There are currently 86 active district judges appointed by Republicans, compared to 79 appointed by Democrats, according to a Bloomberg Law analysis.

Trump tipped the balance in ideological balance between the Philadelphia-based Third Circuit, the Atlanta-based Eleventh Circuit and the New York-based Second Circuit. Biden managed to regain the majority in the Second District but was unable to reverse ideological control of any other districts.

Trump has also left his mark in traditionally liberal circles. He secured ten nominations to the Ninth Circuit and five to the New York-based Second Circuit. Both heard challenges to Trump’s immigration and environmental policies during his first term.

Although both courts are still liberal, the scope is narrower. Thirteen of the 29 judges of the Ninth Circuit and six of the 13 members of the Second Circuit were appointed by Republicans.

The Ninth Circuit gained its reputation in the ’80s and early ’90s, but the court is “no longer as overwhelmingly liberal as it once was,” said Jeremy Fogel, executive director of the Berkeley Judicial Institute and a former California federal judge.

The party of judges that appoints presidents does not necessarily predict their judicial philosophy. For example, some judges appointed by Republican presidents in blue states may be more moderate.

Still, appeals are typically heard by three-judge panels, and the rightward shift of even liberal courts means that an all-liberal panel is far from safe for potential challengers to Trump’s policies.

“If I were an immigration lawyer or a civil rights lawyer, I’m not sure what legal recourse I would turn to right now because I’m not sure anything is an easy argument,” Fogel said. “Knowing what I know now, I would probably still go to the Ninth, but probably with less confidence than in the past.”

Lisa Graybill, vice president of law and policy at the National Immigration Law Center’s Immigrant Justice Fund, said that while her organization is keeping an eye on district court trends, litigation should still be a “critical tool” in the fight against immigration policy. which they consider to be illegal under the next government.

Even if advocates ultimately don’t win a court challenge, the litigation itself could shed more light on the Trump administration’s immigration policies and increase transparency, she said.

If some courts and judges are willing to sanction unlawful actions, “my hope and my belief is that ultimately the people, the American people, will not do that,” Graybill said.

Turn seat over

Trump’s influence on the district courts was possible, among other things, by placing his nominees in seats that had been vacated by Democratic-appointed judges.

Trump flipped 17 district seats, including three in the Ninth. Some were vacated under the Obama administration but remained open because Senate Republicans refused to confirm many of his nominees while they controlled the chamber.

The death or retirement of a Democratic nominee in the Second District or two in the Ninth Circuit would result in those courts going to a majority of Republican nominees. Five Democratic candidates in the Ninth are eligible or will be eligible in the next four years to adopt a form of semi-retirement called senior status.

Even if Trump doesn’t flip seats during his second term, the inability of lawmakers in his home state to effectively veto a district candidate under Senate rules paves the way for him to gravitate toward more extreme conservatives, even in Democratic states Senators.

Sen said seat changes would become less common over time as judges choose to retire when terms coincide with the policies of the presidents who appoint them.

Biden flipped nine seats, and none were in the Ninth District.

The significance of the appeals court shifts may be partially mitigated by Biden’s district court appointments. Trial judges nationwide can block federal guidelines and produce factual briefs that will be considered on appeal.

About 60% of active district judges currently serving on the bench were appointed by Democrats. And in the Ninth Circuit, for example, Biden appointed all seven active judges of the Seattle-based Western District of Washington.

District trends “are not particularly important in terms of venue selection,” said Scott Dodson, director of the Center for Litigation and Courts at the University of California College of Law at San Francisco.

“What’s more important are the district courts,” he said, noting that the trial courts in the Ninth Circuit still tend to be liberal. “Winning at the district court level is the most important thing.”