A Trump Card The President Can Play In California: Judgeships

Thursday, January 31, 2019
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Let’s take a look at the complicated relationship between President Trump and California through a more military lens—namely, the question of winning battles or wars.

So far, Trump has taken heavy casualties on the battlefield. His November 2016 loss in California was historically awful (the largest margin of defeat for a presidential candidate in the Golden State since Republican Alf Landon’s in 1936). Trump’s net approval rating in California ranks among the nation’s worst, rivaled only by smaller blue states like Hawaii, Maryland, Massachusetts, and Vermont.

On a daily basis, the president rarely draws positive headlines in California. Last fall, he was mocked for suggesting that the nation-state adopt a Finnish practice of raking forests to reduce fire risk. Earlier this month, in the midst of the partial shutdown of the federal government, California Governor Newsom openly defied the Trump Administration by offering unemployment coverage for federal employees required to report to work without pay.

Look for the trend to continue this year and the next. On matters like climate change and environmental policy (changing standards for auto mileage and emissions), California will be portrayed as the lead dog in the anti-Trump sled team. As California Republicans work out their internal differences, Trump will be seen as part of the problem, not the solution.

But as bad as these battles are for Trump, there is a way for the president to get the last laugh at blue California’s expense—winning the war, if you will.

Trump’s California trump card: judicial appointments.

Two years into his presidency, Trump can point to 85 new lifetime Article III judges on the federal bench. That includes two on the highest court of the land.

(The federal Article III judiciary is composed of 9 Supreme Court justices, 179 appellate judges, 663 district judges, 9 international trade judges, 10 temporary district court judges, and more than 600 “senior status” federal judges).

And there’s more Trump can do.

Currently, there are 130 vacancies in the federal judicial system: 118 at the district court level and 12 at the appellate level. Add that 130 to the prior 85 and, in theory, Trump could be responsible for staffing roughly one-fourth of the entire federal judiciary.

How does this relate to California? For these reasons:

The Big Empty. The largest state in the union also has the most current vacancies—12 district court judgeships, plus 2 California-based slots on the infamous Ninth Circuit Court of Appeals (i.e., the court conservatives love to hate).

Last week, the Trump White House produced a list of 51 judicial nominees—9 for appellate vacancies, 42 for district courts. Not a single nominee pertained to a California court, even though 2 of the appointments were for Ninth Circuit vacancies (the proposed replacements hailing from Arizona and Washington State).

Let’s see if the same conservative judicial activists who proved so adept at promoting the candidacies of Brett Kavanaugh and Neil Gorsuch can convince the Trump White House to get moving on California-based vacancies.    

Winnable Fights. Whomever Trump chooses, they’ll likely incur the wrath of California’s two Democratic senators, Dianne Feinstein and Kamala Harris. Both sit on the Senate Judiciary Committee. One (Harris) is running for president, with her committee seat and her actions associated with it helping to raise her national profile.

In December, Feinstein and Harris sent a letter to the president’s incoming counsel asking that “the White House work with us to reach an agreement on a consensus package of nominees for vacancies to the Ninth Circuit and to the district court vacancies in the Central and Southern Districts of California.” The two sides have yet to find common ground.

Feinstein and Harris have a judicial “trump card” of their own to play—“blue slip” privilege (by tradition, the Senate doesn’t move forward on a judicial nomination unless the home-state senators return a blue-hued slip signaling their approval).

However, that tradition is steadily coming to an end—just as the Senate filibuster has been missing from the equation ever since Harry Reid rewrote the chamber’s rules to allow confirmations by a simple Senate majority vote.

The bottom line: Trump could flood the Senate with nominees for California vacancies and, despite Feinstein’s and Harris’s harrumphing, the president is likely to get what he wants.   

Legacy. Judicial nominations are not just battles but battles for the ages, in that judges serve long after their presidential patrons have left the stage.

The median age of Trump judicial picks at the time of their nomination is 49 (Justice Gorsuch turned 51 last August; Justice Kavanaugh turns 54 in February).

A good example of how this affects California is the late Stephen Reinhardt, appointed to the Ninth Circuit Court of Appeals in September 1980 at the age of 49 and, at the time of his death in March 2018, the last federal appeals court judge in active service to have been appointed by Jimmy Carter.

The left praised Reinhardt as the Ninth Circuit’s “liberal lion.” The right gnashed their teeth as Reinhardt struck down measures prohibiting “partial-birth” abortion and requiring students to cite the Pledge of Allegiance.

That latter decision came in 2004; the Ninth Circuit’s abortion ruling came in 2006—both long after Carter’s one-term presidency had come to an end. Similarly, conservative Trump judges could affect the California landscape for the next quarter-century.

Future Battles and Wars. The final reason why California’s federal courts merit the Trump White House’s immediate attention: in the Golden State, it’s where the action is.

Xavier Becerra is California’s 33rd state attorney. He’s filed about 70 briefs and legal actions against the Trump Administration, including 45 lawsuits—and shows no signs of letting up.

Litigation is, of course, a two-way street. The Trump Administration has sued California over the state’s net-neutrality law, “sanctuary” policy (alleging California was endangering the public and obstructing immigration enforcement), and a state law giving California the right to override the sale of federal lands.

As the impasse over border security and partial funding of the federal government shows, the Trump White House isn’t averse to a fight. But it needs to do a better of picking fights it can win.

Words not often said: California, with its long list of federal judicial vacancies, might provide President Trump with something he’s not getting in Washington these days—easy, repeat victories.