Ninth Circuit recommended for expansion. Could it mean shift to the right?

A pedestrian walks past the Ninth Circuit Court of Appeals which will be hearing the travel ban case this afternoon, in San Francisco, California, on Tuesday, Feb. 7, 2017. A pedestrian walks past the Ninth Circuit Court of Appeals which will be hearing the travel ban case this afternoon, in San Francisco, California, on Tuesday, Feb. 7, 2017. Photo: Gabrielle Lurie / The Chronicle Buy photo Photo: Gabrielle Lurie / The Chronicle Image 1 of / 3 Caption Close Ninth Circuit recommended for expansion. Could it mean shift to the right? 1 / 3 Back to Gallery

U.S. judicial leaders are proposing to add five more judges to the Ninth U.S. Circuit Court of Appeals in San Francisco, an expansion that could potentially shift the majority from Democratic to Republican on a federal appellate court whose liberal rulings have long made it a favorite target for conservatives.

The recommendations from the Judicial Conference, whose members are judges representing the nation’s federal courts, are intended solely to ease the Ninth Circuit’s workload. If approved — with legislation that would require at least some Democratic support — it would increase the number of seats on the court from 29 to 34.

The Ninth Circuit now has 24 judges, 16 appointed by Democratic presidents and eight by Republicans, including three by the court’s most vocal critic, President Trump. He has called the circuit hostile and biased for its rulings against him on issues such as immigration, birth control and transgender military service.

But Trump has nominated candidates to fill five current vacancies on the court, and their confirmation by the Republican-controlled Senate would narrow the division to 16-13, increasing the prospect of a Republican-appointed majority on the randomly chosen three-judge panels that decide most cases and the 11-judge panels that can overrule past precedents.

And if Trump could appoint five more judges in the next year, the court would have 34 members, 18 of them chosen by Republican presidents.

Don’t count on it. At least not without a bipartisan agreement that seems foreign to the current political climate.

The main reason Congress hasn’t significantly enlarged the federal courts since 1990, despite substantial increases in workloads, is that “whoever doesn’t have the White House doesn’t want to give the opposition party all the vacancies to fill,” said Carl Tobias, a University of Richmond law professor who tracks federal court appointments.

Adding federal judges requires legislation, which Democrats could block with their majority in the House or with a filibuster in the Senate. A possible compromise could be modeled on 2008 legislation that added one seat to the Ninth Circuit. It was signed by President George W. Bush, but drafted to take effect when the next president took office in 2009.

“Something might happen next year if it looks like the presidency is close and the Senate is close” in the 2020 elections, Tobias said. Another approach, he said, would be to divide the five new seats, with Republicans choosing three judges and Democrats two.

But that would require a concession from Trump, whose judicial selections so far have been confirmed by Senate Republicans at a record pace, largely on party-line votes.

The Ninth Circuit hears appeals from federal courts in California and eight other Western states. It was once a relatively conservative tribunal, with 10 judges appointed by Republican presidents and three by Democrats. That was before its last major expansion, in 1978, when a Democratic Congress, with little resistance from Republicans, added 10 seats for President Jimmy Carter to fill.

The new members, joined by more Carter picks after a spate of judicial retirements, transformed the circuit into a liberal bastion for most of the next four decades, motivating civil rights groups and others challenging conservative policies to file national suits in states within the court’s jurisdiction.

Meanwhile, a Supreme Court with a conservative majority was overturning many of the circuit’s most prominent rulings —which declared unconstitutional the addition of “one nation under God” to the Pledge of Allegiance, barred federal prosecution of medical marijuana users in California, gave terminally ill patients a right to die and, most recently, struck down Trump’s ban on U.S. entry of anyone from a group of predominantly Muslim countries.

It was “the most thorough transformation of a federal appellate court that I think has ever happened,” perhaps comparable to the U.S. Supreme Court’s turnaround under President Franklin D. Roosevelt in the late 1930s, said Arthur Hellman, a University of Pittsburgh law professor and former director of the Ninth Circuit’s central legal staff. “People didn’t see federal appellate courts in the politicized way that they do today.”

As Mary Schroeder, one of the Carter appointees and later the Ninth Circuit’s chief judge, recalled, until 1978 “it was a small court, very conservative, that badly needed judges.”

In recent years, Republicans have sought to break up the Ninth Circuit, with legislative proposals to carve out six states into a presumably more conservative court and leave California, Oregon and Hawaii in the current court. Backers say a smaller court would decide cases more quickly, but most Ninth Circuit judges from both parties oppose a breakup, and it offers nothing to Democrats.

Republicans who controlled both houses in 2017-18 might have been able to win support for a Ninth Circuit split along with a “sensible judgeship bill” that gave Democrats a voice in new selections to the court, Hellman said. Instead, he said, congressional leaders, along with Trump, focused on breaking up a court that contains one-sixth of the nation’s federal appellate judgeships.

As for the Judicial Conference’s recommendations, conservative scholar John Eastman, a law professor at Chapman University in Orange County, said, “The proponents of a split are unlikely to let a bill go through that would add to the existing oversized Ninth.”

The proposal to enlarge the Ninth Circuit came as part of a package of recommendations from the Judicial Conference, which advises federal court expansions to Congress every two years to keep up with workloads. This year’s plan would also add 60 judgeships — 22 of them in California — to the heavily backlogged District Courts that handle trials.

Republican leaders have allowed California’s Democratic senators, Dianne Feinstein and Kamala Harris, to approve or reject District Court judges in the state but have scrapped a long-standing practice of giving senators a veto, known as a “blue slip,” over circuit court nominees in their state.

Shortly after announcing her presidential candidacy, Harris said she would vote against all of Trump’s appeals court nominees. Feinstein, who has been open to negotiations in the past, has recently accused Trump of backsliding on plans to present a joint slate of court candidates.

“I agree that more qualified, mainstream judges would help address the case backlog,” Feinstein said in a statement. “In fact, I introduced legislation during the Obama administration to do this, but it was blocked.”

Bob Egelko is a San Francisco Chronicle staff writer. Email: begelko@sfchronicle.com Twitter:@BobEgelko