Commentary: Time to fill Ninth Circuit vacancies

Special to McClatchy NewspapersMay 21, 2012 

On May 7, the Senate finally confirmed U.S. District Judge Jacqueline Nguyen 91-3 for the Ninth Circuit five months after her unopposed Judiciary Committee vote.

However, three of 29 judgeships remain vacant on the nation’s largest appellate court. Therefore, the Senate must expeditiously confirm the two superb committee-approved nominees, while President Barack Obama must promptly select a nominee for the third opening.

The Ninth Circuit has as many vacancies as each of the twelve regional circuits, while its judges have twice their caseload, a backlog of 14,000 pending appeals and the slowest resolution time. These dockets mean all three vacancies are “judicial emergencies.” The openings undermine justice in the Ninth Circuit, the court of last resort for 99 percent of appeals from nine western states and two territories. Eighteen months ago, Ninth Circuit Chief Judge Alex Kozinski wrote Senate leaders to emphasize the court’s “desperate need for judges,” urging action “on judicial vacancies without delay” because the “public will suffer” with openings.

Obama has acted cooperatively to quickly fill vacancies by limiting the incessant accusations, partisanship and paybacks that have plagued selection. Obama maximized consultation by seeking advice from Democratic and Republican senators before actual nominations. For example, following carefully solicited guidance from Arizona GOP Senators John McCain and Jon Kyl, he nominated District Judge Mary Murguia, who won unanimous confirmation in 2010. Last year, Obama again consulted the senators, who enthusiastically proposed Arizona Supreme Court Justice Andrew Hurwitz.

Obama agreed with Alaska Senators Lisa Murkowski (R) and Mark Begich (D) and nominated Alaska Supreme Court Justice Morgan Christen. He similarly consulted California Democratic Senators Dianne Feinstein and Barbara Boxer, who proposed Judge Nguyen, the first Vietnamese American federal judge.

In 2011, the senators also suggested well qualified attorney Paul Watford, a partner in the respected Munger, Tolles and Olson firm. The Los Angeles Times found his nomination “draws praise from both sides of the aisle,” while Judge Kozinski; Jeremy Rosen, past president of the Federalist Society’s Los Angeles Lawyers Division; conservative law professors, including UCLA’s Eugene Volokh; and CEOs of Verizon, Mattel and Google strongly support Watford.

After Obama tapped nominees of balanced temperament, who are very intelligent, ethical, independent and diligent, he cooperated with both parties’ Senate leadership. Nonetheless, the bottleneck has been the floor. GOP senators have repeatedly refused to allow votes, even for nominees with enthusiastic home-state senator support and who would fill emergencies. The Senate made Nguyen wait five months and Christen three after unanimous committee approval, confirming her 95-3.

Mr. Watford, had a smooth December hearing and earned February 10-6 committee approval. Because Republicans rejected a floor vote, seven GOP senators must join Democrats in the cloture vote scheduled later today. Some Republicans expressed concern about his participation in litigation challenging Arizona’s controversial immigration laws. Senators should also vote soon on Justice Hurwitz, who had a January 26 hearing and received March 13-5 committee approval. Several Republicans seemed concerned about Hurwitz’s law review article, which purportedly took credit for articulating Roe v. Wade’s underpinnings.

Even if the Senate confirms Watford and Hurwitz, the third vacancy may remain empty. Obama has not submitted a nominee for Judge Stephen Trott’s opening, although he assumed senior status in 2004, principally because Idaho GOP Senators Mike Crapo and James Risch have insisted Trott’s choice to sit in Boise makes his seat an Idaho one. Thus, Obama must consult the California senators because Trott filled a California vacancy and perhaps the Idaho senators, as they may oppose a California nominee. Obama should then rapidly nominate a strong choice.

President Obama and the Senate must promptly fill all the Ninth Circuit vacancies with excellent judges, so the court can deliver justice.


Carl Tobias is the Williams Chair in Law, University of Richmond.

McClatchy Newspapers did not subsidize the writing of this column; the opinions are those of the writer and do not necessarily represent the views of McClatchy Newspapers or its editors.

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