John Owens during his confirmation hearing on Oct. 30, 2013. (Photo: Diego M. Radzinschi/ NLJ)
The Senate today filled the longest vacancy in the federal judiciary with a vote that ends a nearly decade-long quarrel over a seat on the U.S. Court of Appeals for the Ninth Circuit.
Munger Tolles & Olson partner John Owens was confirmed Monday evening 56-43 for the appellate court. He fills a seat left vacant since 2004, when Judge Stephen Trott took senior status.
Since then, California and Idaho have fought over which state’s senators got to propose a replacement for the seat—the federal judiciary’s version of a Hatfield-McCoy feud. The debate spilled onto the Senate floor last week.
Traditionally, circuit vacancies are replaced with a nominee from the same state from which his or her predecessor was nominated. The twist here: Trott was appointed to what had been considered a California slot on the Ninth Circuit, but chose to locate his chambers in Idaho for 25 years on the bench.
Idaho’s Republican senators—Mike Crapo and James Risch—have cried foul since August, when President Barack Obama picked Owens, a Washington, D.C., native and partner in his firm’s Los Angeles office. Their objections aren’t based on Owens’ qualifications, only on the history of the appellate court seat.
Senate Democrats pushed the nomination through the process over those objections, with Sen. Dianne Feinstein, D-Calif., taking the lead in arguing why California should be allowed to fill the Ninth Circuit vacancy.
Trott spent his entire legal career in California before joining the Justice Department under President Reagan, Feinstein said Thursday on the Senate floor before a 54-44 procedural vote to advance Owens’ nomination. Throughout his career, Trott was licensed to practice law only in California, she said.
“Judge Trott was a California nominee to a California seat on the Ninth Circuit Court of Appeals, as was his predecessor,” Feinstein said. “Nothing supports removing this seat from California to Idaho—not history, not population, not caseload. Nothing.”
California has far less than its proportional share of circuit judgeships and Idaho already has its fair share, Feinstein said. Presidents of either party, she said, must know which senators to consult, and senators must know which vacancies to make recommendations for.
“This might sound like inside baseball to some, but it is fundamental to the Senate’s advice and consent role, and no senator of either party would allow the arbitrary occurrence of a judge’s personal choice of residence to remove a judgeship from the senator’s home state,” Feinstein said last week.
Crapo, however, accused the Democrats of using the Senate’s new rules—which essentially stripped the minority party of its ability to block judicial nominees—to fill the seat. Under those new rules, only a majority of votes are needed to overcome a filibuster instead of 60.
Crapo said Democrats used those old rules in 2006 to block the confirmation of Randy Smith, an Idaho nominee to the Trott spot. Smith was ultimately confirmed to the other Idaho seat on the Ninth Circuit.
“Senator Risch and I had multiple conversations with the White House counsel in President Obama’s first term where we expressed our interest in working with the White House and the California delegation to reach a resolution to this long-standing dispute in a way that would satisfy both delegations,” Crapo said on the Senate floor Thursday.
“Clearly, the Idaho delegation and the Idaho people are disappointed by the president’s decision to decline to nominate an Idahoan to fill the Trott seat,” Crapo said.
Senate Judiciary Committee Chairman Sen. Patrick Leahy, D-Vt., in August paved the way for the Owens nomination under the “blue slip” tradition in the Senate. Leahy sent out blue slips for the nomination to the California senators, not to Idaho’s.
Leahy follows the blue-slip process, which home-state senators can use to block a nominee the White House wants to advance. If the home-state senators withhold the blue slips—actual pieces of paper for senators to sign approval for a nominee—then the nomination does not advance.
By recognizing California as Owens’ home state, Leahy stripped Idaho’s senators of the power to use the blue slip to block Owens from a committee hearing.
Owens, who clerked for U.S. Supreme Court Justice Ruth Bader Ginsburg, was a federal prosecutor for 11 years in Washington and Southern California before joining Munger Tolles last year. He practices in white-collar criminal defense and investigations.