The 9th Circuit Court of Appeals is about to have two new, conservative judges join its ranks in California, with a third likely on his way.
Over the past week, Senate Republicans confirmed conservative Southern California attorneys Kenneth Lee and Daniel Collins to the influential San Francisco-based appeals court, the largest and busiest in the country.
And after several months of delay, the Senate Judiciary Committee is holding a hearing Wednesday for nominee Daniel Bress, a sign Republicans feel confident about his prospects for confirmation.
While the addition of three conservative judges will not, on its own, shift the 9th Circuit’s liberal tilt, it marks a major victory for the conservative legal movement and its long-term effort to reshape the federal judiciary. That effort has accelerated under President Donald Trump and Senate Majority Leader Mitch McConnell, who have done away with some longstanding precedents to move the president’s nominees through the Senate.
‘He is not a California lawyer’
On Tuesday, the Senate confirmed Collins on a party-line vote. The chamber confirmed Lee with a similar vote on May 15. Both of California’s senators, Democrats Dianne Feinstein and Kamala Harris, voted against the two nominees.
“Democratic Senators have been willing to work with the White House to find consensus picks for the circuit courts. But that willingness has been rebuffed by the Trump administration and disregarded by the majority,” Feinstein said in a speech on the Senate floor on Tuesday. “Once again, we see the majority violating Senate norms and traditions by ignoring home-state Senators — including the Judiciary Committee’s Ranking Member,” she continued, referring to herself and her position as the senior Democrat on the committee that oversees federal courts.
Feinstein has objected to Republicans’ decision not to honor a practice known as the “blue slip,” which essentially gave individual senators a veto over home state judicial nominees.
Traditionally, the Senate has not considered judicial nominees if the senators who represent the state where the court is based did not return their blue slip for that would-be judge. Neither Feinstein nor Harris returned blue slips for Lee or Collins.
They have also protested the White House’s choice of Bress for a third California-based vacancy on the 9th Circuit, pointing out that he has spent all but a year of his adult life on the East Coast.
“Put plainly, Daniel Bress does not live in California and he is not a California lawyer,” Harris said in a statement ahead of Bress’ hearing. “He lacks strong ties to the local legal community that, if confirmed, would appear in his courtroom every day. This nomination is yet another egregious violation of the norms under which the Senate once operated.”
South Carolina Republican Lindsey Graham, the chairman of the Senate Judiciary Committee, acknowledged his California colleagues’ concerns at a hearing in early March. “Having a nominee to the circuit court with very little connection to California bothers me,” he said at the time, promising to take up the matter with the White House.
On Tuesday, Graham told McClatchy that he’d had further discussions about the nomination and his concerns had been assuaged. “I feel good about it. I feel like he’s okay,” the senator said as he walked into a classified briefing at the Capitol.
Conservatives declare victory
With Graham on board, Bress is likely to face little Republican pushback, absent some new revelations or scandal. And Democrats cannot stop any of Trump’s judicial nominees on their own.
The party can only blame itself for that: when Democrats were in the Senate majority in 2013, they voted to eliminate the filibuster for judicial nominees, allowing a simple majority vote for confirmation.
Once they were in the majority, Republicans took that a step further, blockading President Obama’s nominee to fill the late Supreme Court Justice Antonin Scalia’s seat after he died in 2016 . In 2017, the GOP majority eliminated the filibuster for Supreme Court justices to confirm Trump’s pick for that vacancy, Neil Gorsuch.
The Trump White House reached out to Feinstein and Harris’ offices during his first year in office to discuss vacancies on the 9th Circuit Court. But after trading lists of possible nominees, the negotiations fell apart in the summer of 2018, and the heated battle over Supreme Court Justice Brett Kavanaugh further alienated the two sides.
Conservative activists, meanwhile, have kept the pressure on the White House and Senate Republicans not to cave to Democrats’ demands on nominations for federal courts. The 9th Circuit, which has jurisdiction over federal courts in California, Washington, Oregon, Nevada, Idaho, Montana, Arizona, Alaska and Hawaii, has been a particular target.
The court has struck down several of the White House’s most controversial policies, including the president’s travel ban on people from several Muslim-majority countries and the White House’s attempts to withhold federal funds from sanctuary cities. Trump complained last November that “you cannot win — if you’re us — a case in the 9th Circuit and I think it’s a disgrace.“
Three judges on the 9th Circuit, however, ruled earlier this month that the Trump administration can continue returning Central American migrants to Mexico while their asylum claims are being adjudicated.
The Judicial Crisis Network, one of the leading groups advocating the confirmation of conservative judges, cheered the confirmation of Lee and Collins, over what they complained was “Democratic obstruction.”
Daniel Collins “will be another exceptional addition to the court,” Judicial Crisis Network Policy Director Carrie Severino tweeted Tuesday afternoon, “protecting the rule of law and helping to bring the 9th Circuit into the legal mainstream.”