Fearing a conservative jurist would replace Judge Stephen Reinhardt, the liberal lion of the Ninth U.S. Circuit Court of Appeals, a prominent progressive legal scholar quietly urged him to retire in the spring of 2014.
U.C. Berkeley School of Law Dean Erwin Chemerinsky approached Reinhardt just months before the 2014 midterm elections and suggested he retire, The New York Times reported Saturday.
Reinhardt refused the overtures. Months later, Republicans assumed control of the Senate, effectively ending former President Barack Obama’s judicial confirmations. President Donald Trump’s election forced the judge into an awkward actuarial battle, an increasingly common phenomenon as judicial appointments become highly politicized. He died on March 29 at 87.
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His strident liberalism was of Warren Court vintage — powerful, but dissonant in the era of Chief Justice John Roberts. Whatever his influence on the Ninth Circuit and the dozens of budding scholars, lawyers and activists who competed for his coveted clerkships, his ideas had little purchase at the Supreme Court. The justices overturned 24 of the 25 Reinhardt rulings they reviewed. Those reversals included his opinion striking down the federal Partial-Birth Abortion Ban Act and his opinion striking down a state law prohibiting doctors from prescribing terminal medications.
Reinhardt is but the latest prominent appeals judge Trump will replace. Judges Richard Posner and Alex Kozinski, both leading lights of the federal judiciary, left active service late in 2017. Posner, who served on the Seventh U.S. Circuit Court of Appeals, retired in September 2017 to do charitable work for indigent plaintiffs. Kozinski, a Ninth Circuit judge, retired in December 2017 amid a deluge of sexual misconduct allegations. Both were considered conservatives, but each departed from conservative legal orthodoxy in different ways.
Trump has named two nominees for the Ninth Circuit thus far: Assistant U.S. Attorney Ryan Bounds was nominated for a seat in Oregon and former Hawaii Attorney General Mark Bennett for a seat in Hawaii. Neither has yet been confirmed.
The Senate confirmed 14 judges to federal circuit courts in 2017 — a record in the modern period.
There are currently 152 vacancies on the federal courts, according to the U.S. Judicial Conference.
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