Michelle Friedland, during her confirmation hearing before the Senate Judiciary Committee. (Diego M. Radzinschi / The National Law Journal)
SAN FRANCISCO — Ninth Circuit nominees John Owens and Michelle Friedland were voted out of the Senate Judiciary Committee with minimal Republican opposition Thursday, though questions remain as to how hard the GOP might fight on the Senate floor.
Three Northern District hopefuls also were among the 29 judicial nominees approved Thursday—James Donato and Beth Labson Freeman unanimously, and Vince Chhabria by a 13-5 vote. All three had been approved by the same vote last year, but President Barack Obama was forced to renominate them after the full Senate allowed their nominations to expire in December.
This was the first vote for Friedland and Owens, two Munger, Tolles & Olson partners nominated to the Ninth Circuit last summer. Owens was approved by unanimous voice vote, though not before Republican Sen. Charles Grassley and Sen. Dianne Feinstein renewed the decade-old debate over whether the seat “belongs” to California or Idaho.
“Mr. Owens is going to be on the Ninth Circuit,” Grassley said at one point. “I’m going to vote to advance Mr. Owens’ nomination out of committee. But I’ll withhold final judgment on this nomination until it is considered in the full Senate.”
Friedland’s nomination was approved 14-3-1, with Republican Sens. Ted Cruz, Mike Lee and John Cornyn voting no and Jeff Sessions voting “pass.” Grassley, the ranking Republican on the committee, said he would issue “a short statement of concerns about Ms. Friedland’s background and history of advocacy,” but that he would vote for her now and reserve final judgment.
Grassley had not issued his statement about Friedland as of Thursday evening. His website did feature a photo of him greeting Friedland’s former boss, ex-Supreme Court Justice Sandra Day O’Connor, at Friedland’s confirmation hearing last fall.Senate Democrats changed the playing field in November by doing away with filibusters on most judicial nominations. That appeared to clear the way for Obama’s nominees, but Republicans have shown a willingness to use additional procedural maneuvers to at least slow down the pace of confirmations.
Glenn Sugameli, an attorney who tracks judicial nominations for Defenders of Wildlife, said that under the old rules, nominees unanimously approved by the Senate Judiciary Committee would typically receive votes on the floor before the next Senate recess, which in this case occurs next week, or on the first day of resumption of business. He said it will be interesting to see if nominees who have now received unanimous committee votes will face delay tactics such as requests for the full two hours of debate on the Senate floor.
Thursday’s hearing was marked by a constructive tone. All 29 nominees were approved in less than an hour, and Committee Chairman Patrick Leahy announced that he and Arizona Sen. Jeff Flake have agreed to set hearings on nominees to six Arizona district court seats, some of which have been vacant for years.
Sugameli said he thought it was a good sign for Owens that only Grassley criticized his nomination, while other committee members such as Mike Lee of Utah held their tongues. “He’s certainly not shy about speaking his mind, and he’s from a neighboring state,” Sugameli said. “Sometimes silence speaks volumes.”
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