“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. It includes judges nominated in both his first and second terms.
Two Trump Ninth Circuit judges, Ryan Nelson and Bridget Bade, reversed a Trump district court judge and authorized Trump to federalize and deploy 300 Oregon National Guard troops to Portland, allegedly to deal with “war ravaged” disorder that has been vehemently denied as false by state and local officials. Judge Susan Graber, a former Oregon Supreme Court justice nominated to the Ninth Circuit by President Clinton, vigorously dissented from the October 2025 ruling in State of Oregon v Trump.
What happened in this case?
In late September, as part of his efforts to take direct control over law enforcement in a number of Democratic cities, President Trump federalized around 300 National Guard troops to send them into Portland. State and local officials strongly protested and filed suit in federal court. Judge Karen Immergut, who Trump himself nominated as a federal district court judge, issued several orders that temporarily stopped Trump from deploying the National Guard to Portland. The Trump Administration appealed one of her orders to the Ninth Circuit.
How did Trump judges Nelson and Bade rule and why is the Ninth Circuit majority decision harmful?
In a 2-1 unsigned decision, Trump judges Bade and Nelson Park agreed to stay Judge Immergut’s temporary order stopping the federalizing of National Guard troops pending its appeal. The majority maintained that it is likely that Trump “lawfully exercised” his authority concerning the National Guard based on a “colorable assessment” of the facts and the law.
Judge Graber strongly dissented. Based on a careful review of the record, she began by noting that the majority’s ruling was not "merely absurd" but also erodes “core Constitutional principles,” including “states’ control over their militias” and “the people’s First Amendment rights to assemble and to object to the government’s policies and actions.”
Judge Graber went on to explain in detail how the record in the case comes “nowhere near” justifying the President’ federalization of the National Guard to deal with Portland. Whether the “days and weeks” before Trump’s late September order or “the full four months beforehand” are considered, she went on, “no colorable assessment of the facts and the law” can justify the majority’s conclusion. The majority ruling thus clearly illustrates the importance of our federal courts to health, welfare and justice and the significance of having fair-minded judges on the federal bench.
The Portland case and the issues it raises are far from over. Even as of the time of Judge Graber’s dissent, it was already clear that a larger group of Ninth Circuit judges would be asked to consider the matter. Judge Graber closed her dissent by urging her colleagues on the court to “act swiftly before the illegal deployment of troops under false pretenses can occur” and by asking those watching the case to “retain faith in our judicial system just a little longer” – a sentiment echoed across the country.