The Ninth U.S. Circuit Court of Appeals, the nation’s largest appellate court and one in every of its most liberal, is a perennial goal of Republicans, who’ve called for breaking it up while counting on the Supreme Court to overturn its rulings. A latest book by two veteran journalists says Donald Trump, while president, asked an aide to attempt to eliminate the San Francisco-based court.
After the appeals court ruled against one in every of Trump’s orders in 2018 to hurry up the deportation of immigrants in search of asylum in the US, the president told Homeland Security Secretary Kirstjen Nielsen, “Let’s just cancel” the court, in response to “The Divider,” by Peter Baker of the Recent York Times and Susan Glasser of the Recent Yorker. If laws was needed, he said, she should draft a bill to “eliminate the f—ing judges” and send it to Congress.
Nielsen, who had no authority to abolish a court, “didn’t hassle arguing” with Trump and just ignored his demand and hoped he would ignore it, the authors wrote. She left office in April 2019 — a departure described in various accounts as a resignation or a firing — after the president complained that his appointees weren’t doing enough to shut the U.S.-Mexico border.
Trump wound up appointing 10 judges, all conservative, to the Ninth Circuit, which still has 16 Democratic appointees amongst its 29 judges.
Trump has repeatedly attacked and belittled judges who ruled against him. As a candidate in 2016, after U.S. District Judge Gonzalo Curiel of San Diego refused to dismiss a fraud suit by students of the now-defunct Trump University, Trump referred to the Indiana-born judge as “Mexican” and called him a “hater” who was biased against Trump due to his plan to construct a wall on the Mexican border. Trump later settled the scholars’ lawsuit for $25 million.
After U.S. District Judge James Robart of Seattle blocked Trump’s first version of a ban on travel to the U.S. from a gaggle of Muslim-majority countries in 2017, the president described the George W. Bush appointee as a “so-called judge” and attacked the Ninth Circuit, which later upheld Robart’s order. Trump’s own Supreme Court nominee, Neil Gorsuch, who was then awaiting Senate confirmation, called the president’s comments “demoralizing” and “disheartening.”
Trump has also clashed with Chief Justice John Roberts, one other Bush appointee, who ruled each for and against his administration in significant cases: He wrote the 2018 ruling upholding Trump’s final version of his travel ban, and one other 2018 decision rejecting Democratic challenges to partisan gerrymandering. But Roberts also wrote the 2019 ruling rejecting Trump’s try to add a citizenship query to the 2020 census, and a 2020 decision blocking the president’s try to abolish the DACA program for young undocumented immigrants. And Trump, as a candidate, referred to Roberts as an “absolute disaster” for his 2012 ruling that upheld most of President Barack Obama’s health care law.
When U.S. District Judge Jon Tigar of Oakland blocked one in every of Trump’s immigration orders in 2018, the president responded, “This wasn’t law, this was an Obama judge,” and drew a rare public rebuke from Roberts.
“We wouldn’t have Obama judges or Trump judges, Bush judges or Clinton judges,” but simply “a unprecedented group of dedicated judges doing their level best to do equal right to those appearing before them,” the chief justice told the Associated Press.
His statement drew eye-rolling from observers of judicial partisanship and a fast riposte from Trump on Twitter: “Sorry Chief Justice John Roberts, but you do indeed have ‘Obama judges,’ they usually have a much different standpoint than the people who find themselves charged with the protection of our country.”
Trump hasn’t stopped his attacks since unwillingly leaving office last yr. A recent goal was U.S. District Judge David Carter of Los Angeles, who ordered Trump attorney John Eastman to supply documents to the House committee investigating the Jan. 6, 2021, Capitol riot. Carter said the documents included emails that “display an effort by President Trump and his attorneys to press false claims in federal court” to delay congressional certification of the 2020 election, evidence of “a conspiracy to defraud the US.”
“Who’s this Clinton appointed ‘Judge,’ David Carter, who keeps saying, and sending to all, very nasty, incorrect, and in poor health informed statements about me,” Trump responded Oct. 20 on his media network, Truth Social. “Please explain to this partisan hack that the Presidential Election of 2020 was Rigged and Stolen.”
Trump’s newly reported demand to abolish a whole federal appeals court can have been only a figure of speech. But some legal commentators say it sheds light on the long run intentions of the previous president, who is anticipated to announce his 2024 candidacy on Tuesday.
“There have been pushes to divide the circuit and appoint more conservative judges. But I don’t recall any president calling for its elimination,” said Kevin Johnson, the law school dean at UC Davis. “To me, President Trump’s plan, like lots of his initiatives (akin to family separation) were without precedent and shows the intense measures that he would propose.”
“After all, (Secretary) Nielsen was the incorrect person to ask but I don’t see anything anywhere saying that Trump was told no,” said Garrett Epps, a University of Oregon law professor who has written several books on legal issues. “We will expect the identical attitude toward courts if he returns to office.”
Then again, Republicans should not the one politicians who’ve attacked individual judges. Because the Supreme Court prepared to rule on an abortion case in March 2020, Senate Majority Leader Chuck Schumer, D-N.Y., told an abortion rights rally, “I would like to inform you Gorsuch, I would like to inform you (Brett) Kavanaugh — you could have released the whirlwind, and you’ll pay the value. You won’t know what hit you when you go forward with these awful decisions.” And lots of Democrats have denounced the court, with its three Trump appointees, as a partisan and biased institution since its June 24 decision repealing the constitutional right to abortion that it had declared in 1972.
Michael McConnell, a former federal appeals court judge and now director of the Constitutional Law Center at Stanford, said “Trump and the progressive critics attempting to delegitimize the Court deserve one another.”
Bob Egelko is a San Francisco Chronicle staff author. Email: begelko@sfchronicle.com Twitter: @BobEgelko
