For years, if not decades, conservatives have bemoaned the decisions coming from the 9th Circuit Court of Appeals in San Francisco. The Court has been called the “9th Circus” at times because many of its decisions have been so clearly contrary to legal and constitutional reality that it often gets reversed by the U.S. Supreme Court, many times by unanimous vote.
It may not be the most reversed Circuit Court on a percentage basis, since the sheer size of the 9th Circuit (covering nine states and two territories) dwarfs the other Circuits, accounting for more cases, and hence, more appeals going to the Supreme Court. Nevertheless, the 9th appears to at times simply not care that the nation’s highest court will inevitably overrule it. As its liberal lion, the late Stephen Reinhardt once said, “They can’t catch ‘em all.” According to Ed Whelan, President of the Ethics and Public Policy Center, Reinhardt “probably holds the record for the most unanimous reversals by the Supreme Court.”
But changing times brings more change. Judicial vacancies inevitably arise, as older judges take “senior status”—a semi-retirement role with a smaller caseload—or pass away. Their spots must be filled.
Presidents appoint federal judges to those vacancies. As most voters realize, there’s typically a difference in judicial philosophy between judges appointed by Democratic presidents as compared to those appointed by Republican presidents. That’s why the issue of judges can be an important election issue. In fact, one exit poll in 2016 showed that for 1 out of 5 voters, the issue of judges was the most important factor in their decision.
We are in fact beginning to see the consequences of the 2016 presidential election play out in the decisions coming out of the 9th Circuit. Seven judges have so far been appointed to that court since the current Administration took office in January 2017.
And this week, the 9th Circuit issued a decidedly conservative decision that has pro-lifers celebrating. A little history is necessary here. Back in February, the U.S. Department of Health and Human Services (HHS) issued a final rule affecting how federal grants involving family planning funds would be distributed to states and private healthcare providers. That rule required several things of grant recipients which were designed to protect federal taxpayer monies from going to organizations who either perform abortions, or who encourage or refer women for abortions. The most important parts included:
- Clear financial and physical separation between Title X funded projects and programs or facilities where abortion is a method of family planning.
- Prohibiting referral for abortion as a method of family planning.
Planned Parenthood opposes both of those requirements, since their “family planning” operations, such as they are, are usually in the same building as their abortion business. They also want to refer women to their abortionists down the hallway, which the old rule allowed. So the new rule is bad for business.
Their blue-state government friends filed lawsuits in Washington State, Oregon, and California and managed to have federal district court judges in those states issue preliminary injunctions against operation of the rule. Two of those judges even issued nationwide injunctions against the rule.
The federal government appealed the issuance of those injunctions to the 9th Circuit, which in days past would have been a futile but necessary step on the way to getting a hearing at the Supreme Court.
But surprise! A 3-judge panel of 9th Circuit judges in June reversed the injunctions, allowing the rule to take effect pending the outcome of hearing the legal arguments on the substantive issues down the road. By the luck of the random drawing procedure used to select the 3-judge panel out of the 28 active judges and 18 senior judges on the Court, the three judges turned out to be Republican appointees. Hence, a conservative (and appropriate) decision resulted.
Planned Parenthood was outraged. Their blue state surrogates who brought the lawsuits immediately appealed to an 11-member panel of 9th Circuit judges, known as an “en banc” panel, only to lose again in a 7-4 decision last Thursday.
All seven of the judges who formed the “en banc” majority denying the blue states’ request to overturn the 3-judge panel turned out to be Republican appointees, including two Trump appointees who replaced former Democrat appointees. All four of the dissenters were Democrat appointees.
Although the political party of the president appointing a judge is not necessarily indicative of their judicial philosophy (remember Justice Souter?), there is an undeniable correlation in many, if not most, cases. And that’s starting to impact the 9th Circuit.
That court currently has 16 active Democrat appointees as judges, and 12 Republican appointees. There are also three vacancies available for the President to fill. Perhaps the days of referring to that court as the “Ninth Circus” are drawing to a close. Time will tell.
Elections do have consequences.