Published in Politico
A bastion of liberalism in the federal judiciary is slowly turning rightward, threatening Democratic court challenges on everything from abortion to who gets a green card.
The Senate confirmation of Lawrence VanDyke and Patrick Bumatay to the 9th U.S. Circuit Court of Appeals this month brought to nine the number of appointments President Donald Trump has made to the 29-member bench that serves as the last stop for nearly all legal complaints lodged in nine Western states. Democratic-appointed judges now hold a three-seat majority, compared with 11 at the start of Trump’s presidency.
If the trend continues, it represents a major shift in the liberal wing of the judiciary, meaning lawsuits for progressive causes won’t find a friendly ear as easily as they have. The circuit has been the go-to venue for activist state attorneys eager to freeze Trump policies on health care, immigration and other social issues. It ruled against Trump’s weakening of Obamacare’s contraceptive mandate, as well as multiple versions of his travel ban.
It’s now weighing the administration’s overhaul of the federal family planning program, the “public charge” rule that denies green cards for individuals who participate in programs like Medicaid — and it could take up the “conscience rule” allowing health providers to opt out of providing care on religious or moral grounds. With Congress largely gridlocked, the rules often are the only way to change policies, even if they’re often challenged in court. And transforming the judiciary to make it more sympathetic to such an agenda could be one of the enduring victories of Trump and Senate Majority Leader Mitch McConnell that will far outlast their time in office.