SAN FRANCISCO — Munger Tolles & Olson partner Michelle Friedland brought a ringer to her Ninth Circuit confirmation hearing on Wednesday. Joining her before the Senate Judiciary Committee were friends, family—and former Supreme Court Justice Sandra Day O’Connor.
“It’s a privilege to have you here with us,” Sen. Mazie Hirono (D-Hawaii), the acting committee chair, told O’Connor at the outset of the hearing.
“It’s a privilege to be here,” O’Connor chirped back from the gallery.
O’Connor, for whom Friedland clerked during the 2001-02 term, did not give testimony, but her presence may have provided sufficient conservative bona fides. Sen. Charles Grassley, the ranking Republican member of the committee, questioned Friedland somewhat more rigorously than he did nominee John Owens at last week’s hearing, but it was still relatively light treatment and Friedland appeared to handle it adroitly.
Asked a standard question about the importance of diversity on the bench, Friedland had a flesh-and-blood reply. “I can say that as a girl growing up, the fact that Justice O’Connor was on the Supreme Court made me feel that I could aspire to anything in my career,” she said. “So she played a huge role in my life long before I was a law clerk.”
Friedland has played an active role in gay rights litigation, including the challenge to California’s Proposition 8, but that issue never arose during her 20-minute hearing. (Hirono praised Friedland for having received the State Bar’s 2013 pro bono award, but did not mention that it was for her defense of a law banning gay conversion therapy.)
Instead, Grassley quizzed her about her participation in the American Constitution Society and a group letter that Friedland signed urging President Barack Obama to push harder for the nominations of Goodwin Liu to the Ninth Circuit and Edward Chen to the Northern District of California.
“Obstruction of these nominations is unfair to the nominees, a deterrence to future candidates, and a disservice to the nation’s judicial system,” Grassley quoted from the letter, then added, “What is your understanding of the Senate’s role in advise and consent?”
Friedland emphasized that there were many signatories to the letter, and said their concern was getting help for swelling judicial dockets. “Certainly, when I signed that letter I had no idea I would be sitting here today,” she added with a sheepish smile. “And I can say that I’m honored to be here and it obviously did not deter me.”
“I think you anticipated a lot of my questions,” Grassley said, smiling back. “Did you get them ahead of time?”
Grassley also asked Friedland her personal view of the death penalty. She did not answer directly, but observed that the Supreme Court has “held repeatedly that the death penalty is constitutional, and I would absolutely apply those precedents just as I would apply all precedents from the Supreme Court.”
Glenn Sugameli, a staff attorney with Defenders of Wildlife who closely tracks judicial nominations, said he could not recall any former high court justices attending confirmation hearings of their former clerks. “Perhaps as a result,” he said, “I thought Sen. Grassley’s questions were fairly muted and his responses to answers were more accepting than he often is with other judicial nominees.”
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