Liberals Face More Conservative Courts to Fight Trump Policies

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

Half of the 12 geographic circuit courts have a majority of judges appointed by Republican presidents, up from a third eight years ago. And some of the most historically liberal benches, including the San Francisco-based US Court of Appeals for the Ninth Circuit, are trending rightward with only a narrow liberal majority.

The shift has liberal litigants hoping to challenge Trump policies without the same safe haven that conservatives had during the Biden administration at the Fifth Circuit. Republican presidents appointed two-thirds of what’s considered the nation’s most conservative appeals court. The New Orleans-based circuit also covers trial courts with single-judge divisions that permit judge shopping.

Progressive litigants “probably want to steer clear of the federal courts” under a second Trump administration, said Harvard professor Maya Sen, who’s written about ideology in the federal judiciary.

Armed with a likely Republican-controlled Senate, Trump also could have the chance to flip even traditionally liberal circuit courts, which now have tighter margins, if judges appointed by Democratic presidents retire or die during the next four years.

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

Conservative Shift

US circuit courts have, as a whole, moved to the right since January 2017, before Trump installed dozens of his picks.

President Joe Biden wasn’t able to replicate his success, leaving appellate courts with more Republican-appointed judges than Democrat-appointed ones and a stronger conservative influence on even historically liberal circuits.

Before Trump took office, there were 81 appellate judges appointed by Democratic presidents and 68 by Republicans, plus some vacancies. There now are 86 active circuit judges appointed by Republicans compared to 79 by Democrats, a Bloomberg Law analysis shows.

Trump tipped the ideological balance of the Philadelphia-based Third Circuit, the Atlanta-based Eleventh Circuit, and the New York-based Second Circuit. Biden managed to flip the majority back at the Second, but didn’t flip ideological control of any other circuits.

Trump also left his mark on traditionally liberal circuits. He secured 10 nominees on the Ninth Circuit and five on the New York-based Second Circuit. Both heard challenges to Trump immigration and environmental policies during his first term.

Though both courts still lean liberal, the margins are tighter. Thirteen of the Ninth Circuit’s 29 judges and six of the Second Circuit’s 13 members were appointed by Republicans.

The Ninth Circuit earned its reputation in the 80s and early 90s, but the court is “not as dominantly liberal as it used to be,” said Jeremy Fogel, executive director of the Berkeley Judicial Institute and a former California federal judge.

The party of judges’ appointing presidents doesn’t necessarily predict their judicial philosophy. Some judges appointed by Republican presidents in blue states, for example, may be more moderate.

Still, appeals are typically heard by three-judge panels, and the rightward shift of even liberal-leaning courts means an all-liberal panel is far but assured for potential Trump policy challengers.

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

Lisa Graybill, vice president for law and policy at the National Immigration Law Center’s Immigrant Justice Fund, said while her organization is mindful of trends at the circuit courts, litigation is still likely to be a “critical tool” to battle immigration policies they see as unlawful under the next administration.

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

If some courts and judge are willing to sanction unlawful policies “my hope and faith is that ultimately the people, the American people, will not be,” Graybill said.

Seat Flipping

Trump’s influence on the circuit courts was possible, in part, by placing his nominees in seats vacated by judges appointed by Democrats.

Trump flipped 17 circuit seats, including three on the Ninth. Some were vacated under the Obama administration but left open by Senate Republicans’ refusal to confirm many of his nominees while they controlled the chamber.

The death or retirement of one Democratic appointee on the Second Circuit or two on the Ninth would flip those courts to a majority of Republican appointees. Five Democratic appointees on the Ninth are eligible or will become eligible in the next four years to take a form of semi-retirement called senior status.

Even if Trump doesn’t flip seats during a second term, the inability of home-state lawmakers to effectively veto a circuit nominee under Senate rules paves the way for him to choose more extreme conservatives, even in states with Democratic senators.

Sen said seat flips will become rarer over time as judges choose to retire during administrations that match the politics of their appointing presidents.

Biden flipped nine seats, and none were on the Ninth Circuit.

The significance of shifts on appellate courts may be blunted partly by Biden appointees at district courts. Trial judges can block federal policies nationwide and build factual records that are considered on appeal.

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

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

“What’s more important are the district courts,” he said, noting that trial courts within the Ninth Circuit still lean liberal. “To win at the district court level is the most important thing.”