Political Scientist Weighs In On Trump's Criticism Of 9th Circuit Court Of Appeals NPR's Ari Shapiro talks with Harvard political scientist Maya Sen about the 9th Circuit Court of Appeals and judicial ideology, following President Trump's criticism of what he says is liberal bias.
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Political Scientist Weighs In On Trump's Criticism Of 9th Circuit Court Of Appeals

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Political Scientist Weighs In On Trump's Criticism Of 9th Circuit Court Of Appeals

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Political Scientist Weighs In On Trump's Criticism Of 9th Circuit Court Of Appeals

Political Scientist Weighs In On Trump's Criticism Of 9th Circuit Court Of Appeals

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NPR's Ari Shapiro talks with Harvard political scientist Maya Sen about the 9th Circuit Court of Appeals and judicial ideology, following President Trump's criticism of what he says is liberal bias.

ARI SHAPIRO, HOST:

Today, as President Trump called troops overseas, he returned to criticizing a favorite target...

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PRESIDENT DONALD TRUMP: We get a lot of bad court decisions from the 9th Circuit, which has become a big thorn in our side.

SHAPIRO: ...The federal appeals court for the 9th Circuit. Here, he was speaking to an Air Force commander stationed in Afghanistan.

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TRUMP: We always lose. And then you lose again and again. And then you hopefully win at the Supreme Court, which we've done. But it's a terrible thing when judges take over your protective services when they tell you how to protect your border.

SHAPIRO: Trump has been criticizing the court all week after a federal judge put a temporary hold on his attempt to ban people from applying for asylum if they enter the country illegally. That judge is not on the 9th Circuit itself, though an appeal of the case could end up there.

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TRUMP: This was an Obama judge. And I'll tell you what, it's not going to happen like this anymore.

SHAPIRO: That statement from Trump on Tuesday prompted an unusual rebuke yesterday from the very top of the federal judiciary, Chief Justice John Roberts. In a statement, he said, we do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.

The 9th Circuit has given the Trump White House a lot of reasons to be frustrated. It ruled against Trump's travel ban.

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UNIDENTIFIED BROADCASTER #1: The unanimous ruling by a federal appeals court against President Donald Trump's travel ban.

SHAPIRO: It has temporarily stopped Trump's effort to end DACA, the program for young people in the country illegally who entered as children...

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UNIDENTIFIED BROADCASTER #2: The three-judge panel ruled unanimously that the administration's decision to end DACA was likely arbitrary and capricious.

SHAPIRO: ...And knocked down his attempt to deprive so-called sanctuary cities of federal funding for refusing to cooperate with federal immigration authorities.

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UNIDENTIFIED BROADCASTER #3: A federal appeals court said the White House doesn't have the power to tie grant money to cooperation with immigration authorities.

SHAPIRO: For a closer look at the 9th Circuit, we're joined by Maya Sen. She's a political scientist at the Harvard Kennedy School who has looked at judicial ideology. Thanks for joining us on this Thanksgiving Day.

MAYA SEN: Thanks for having me.

SHAPIRO: So many different high-profile issues have come through the 9th Circuit, as we just heard. Why does this particular appeals court come up so much?

SEN: Well, there are a couple of reasons why. But the No. 1 reason is because the 9th Circuit is the largest federal appeals court in the United States. That court has 29 judges serving on it. The next largest court is the 5th Circuit, which has 17 judges. The 9th Circuit also covers a large swath of the western United States. And in terms of population, it services about 61 million Americans.

So it's quite a bit bigger than the other courts, and because of that, it hears many more cases. So it's not surprising that it's the locus of a lot of controversial legal activity.

SHAPIRO: Does the 9th Circuit deserve this reputation that it's gotten for being a more liberal group of judges?

SEN: To give you a perfectly honest answer, going back in time, historically, yes. The 9th Circuit has been known as being a left-of-center court. That reputation actually goes back to the Carter administration. Jimmy Carter was actually able to make a lot of appointments to that court when he was in office. And so ever since then, that court has had a reputation for having more left-leaning judges.

The reason why I'm equivocating is because, at this point in time, that court - it has about 70 percent of its judges who were appointed by Democratic presidents, which seems high. But that's actually fairly comparable to a number of other influential court of appeals in the United States. It's not such a huge outlier in the grand scheme of federal courts right now.

SHAPIRO: How much truth is there to this claim that the 9th Circuit is overturned more often than other courts? In a tweet, President Trump said 79 percent of the time.

SEN: That's true. It is overturned 79 percent of the time. But you have to take that into the broader context, which is that 66 percent of all cases are overturned, right? So when you compare - 79 percent sounds really high. But when you realize that the Supreme Court, actually, when it takes a case, it usually overturns a lower court decision, it's actually not that high in comparison.

The other thing is that there are actually other courts that are overturned just as frequently, if not more, depending on which years you look at. So I'll give you an example. The Court of Appeals for the 6th Circuit, by some measures, is overturned - by some years, is overturned 80 percent of the time. That's a court that comprises Tennessee, Kentucky and Ohio. So this is not, you know, an incredibly left-leaning court by any stretch of the imagination. And the reversal rate for that court is roughly comparable to that of the 9th Circuit.

SHAPIRO: How much truth is there to the chief justice's statement that there are not Obama judges or Trump judges?

SEN: So it's a really interesting question because once a judge is confirmed, there are no partisan designations for federal judges. He's right. But that said, the research is really clear. The empirical evidence is really clear that judges who are appointed by Republicans tend to vote and rule and write opinions in a more conservative direction. And judges who are appointed by Democratic presidents tend to rule and vote and write opinions in a more left-leaning direction.

So I think there's a lot to be said for the sentiment that judges should stay out of politics and be nonpartisan, and I think that's important for courts to do that to maintain judicial independence. But in terms of their voting and how they rule, there are marked differences between judges appointed by presidents of different parties.

SHAPIRO: Maya Sen is a political scientist at Harvard University. Thanks so much for talking with us today.

SEN: Thank you for having me.

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