As reported by DailyCaller
Judge Stephen Reinhardt, once the liberal lion of the 9th U.S. Circuit Court of Appeals, had a stock response whenever he was asked why he wrote decisions that had little chance of surviving Supreme Court review.
“They can’t catch them all,” Reinhardt would quip.
It was the kind of display that inflamed conservative animosity for the 9th Circuit. Reinhardt’s oft-used crack was no mere jest. It reflected his belief in the judicial duty to unleash the full potential of the Constitution as a means for justice and social progress. His was an activism of Warren-court vintage that for decades made a home on the 9th Circuit.
Reinhardt was still in active judicial service when he died in March 2018, meaning it was for President Donald Trump to replace him. The death of an iconic progressive cause lawyer turned federal judge, and his succession by a young movement conservative, placed in sharp relief the Trump administration’s determined campaign to slowly transform the nation’s largest appeals court.
That story is not yet a triumphalist one. Though Trump has made more appointments to the 9th Circuit than any other federal appeals court, Democrat appointees still maintain a majority. What’s more, the judges he has appointed have only served for a brief time, making assessments premature. Still, the president has stacked his chief judicial adversary with a roster of increasingly conservative personnel, with additional confirmations expected before the end of 2019.
Measuring Trump’s success
The president has made seven appointments to the 9th Circuit. When Trump took office there were 18 Democrat appointees, seven Republican appointees, and four vacancies on that court, according to a Brookings Institution tabulation. As of this writing, there are 16 Democrat appointees and 12 GOP appointees with one vacancy remaining.
Whether Trump’s appointments have prompted a reorientation of the court is a debatable proposition. Three of Trump’s nominees succeeded Republican-appointed judges. Though one of those retired judges, Alex Kozinski, was an unconventional jurist, on balance those three appointments did not change the 9th Circuit’s ideological balance.
What’s more, one of the four Democrat appointees Trump has replaced, Judge Richard Tallman, was a Republican former President Bill Clinton appointed as part of a deal with GOP lawmakers from Washington state. A second Clinton appointee Trump replaced, Judge Barry Silverman, was a bipartisan pick who was confirmed with the support of Arizona GOP Sens. John McCain and Jon Kyl.
As such, Trump has not moved the jurisprudential needle much in many cases, University of Richmond School of Law Professor Carl Tobias told the Daily Caller News Foundation.