Trump’s transformation of judiciary stops at appeals court

President has yet to place any judges on famously liberal 9th Circuit

President Donald Trump has had ample opportunity to begin transforming his judicial nemesis: a federal appeals court out West that has stymied some of his most ambitious and controversial proposals. So far, he hasn’t seized it. The powerful U.S. Court of Appeals for the 9th Circuit has long been a target for conservatives who argue it is a liberal power center out of step with the rest of the country. It now has eight vacancies, giving Trump the ability to reshape the court. But the White House has put forward only two picks for the open slots — neither of which has been confirmed.

In a presidency that has been marked by Trump’s notable successes in transforming the federal judiciary — 15 circuit judges have already been installed under Trump, and the Senate is poised to soon confirm up to six more — the famously liberal 9th Circuit stands out as a glaring exception. It’s all the more striking when considering the appeals court has repeatedly been the target of Trump’s Twitter ire, particularly after it issued rulings unfavorable to the administration, including on the travel ban and a crackdown on sanctuary cities.

Conservative groups pleased with Trump’s judicial picks overall have so far given him a pass for not moving more quickly to reshape the 9th Circuit, laying the slowdown at the feet of Democrats.

“He tries to give them every benefit of the doubt in working with them,” said Carrie Severino, the chief counsel of the conservative Judicial Crisis Network. “You can only go so quickly, in general.”

But others note that Trump could do more, especially given how much he has complained about the rulings coming out of the 9th.

“There’s a lot of things where his involvement has been limited to tweets,” said Ilya Shapiro, a senior fellow at the Cato Institute who has offered input to the White House on potential nominees. “He has more power than that, believe it or not, that he hasn’t taken advantage of.”

The administration has prioritized filling vacancies in other, more conservative courts, probably because they are easier: Those states often have two Republican senators who can quickly sign off on Trump’s picks so the White House can nominate them. In the 9th Circuit, multiple states with court vacancies have a pair of Democrats, which raises the chances for partisan standoffs over changes to the judiciary.

Trump, as well as Senate Majority Leader Mitch McConnell, R-Ky., needs minimal support from Democrats to confirm judges. But there has been a longstanding tradition of consultation between a White House and homestate senators in picking judicial nominees — a practice Democrats have complained is eroding under the president.

The dynamic is especially acute in California, which boasts three of the 9th Circuit vacancies. The state’s senior senator, Dianne Feinstein, is ranking Democrat on the Senate Judiciary Committee, which processes all candidates for the courts, and Sen. Kamala Harris, D-Calif., who also sits on the panel, has established herself as a leader of the liberal resistance against Trump initiatives and nominees.

The White House sent five potential names for a 9th Circuit vacancy in July to Feinstein and Harris for their review, an administration official said. Two more slots have opened up since then: Judge Alex Kozinski stepped down in December amid accusations of sexual misconduct, and Judge Stephen Reinhardt, a liberal, died in March.

Feinstein has already warned the White House against nominating conservatives over her and Harris’ objections.