Judge John Owens, United States Court of Appeal for the Ninth Circuit (Diego M. Radzinschi/ The National Law Journal)
SAN FRANCISCO — It’s going to be a long couple of weeks for Michelle Friedland and the Ninth Circuit.
The Munger Tolles & Olson partner appeared to be less than 24 hours from confirmation Thursday when a Senate recess intervened, and the vote on her 8-month-old nomination to the appellate court was postponed to April 28.
If she is confirmed—and she is expected to be, despite GOP opposition—the Ninth Circuit will boast a full complement of 29 active judges, the most ever at the court. Friedland and John Owens, who was confirmed last month, would be President Barack Obama’s sixth and seventh additions to the court and leave Democratic appointees outnumbering Republicans, 20-9. That would seem to present an opportunity for the court to move left—though if anything, it has been tacking toward the center since Obama’s appointees began arriving in 2011.
“This will be a moment in history—29 active judges with this very substantial imbalance politically,” said University of Pittsburgh law professor Arthur Hellman.
While he cautions that political pedigrees don’t dictate results from case to case, over the long haul Hellman expects two more Obama appointees to increase liberal outcomes, particularly when the court is deciding which important, thorny issues to review en banc. “It may not be a huge shift, but I think we will see something of a shift in that direction,” said Hellman, a close follower of the court.
Horvitz & Levy appellate specialist Jeremy Rosen isn’t as sure. He sees the Ninth Circuit as a court with a few very liberal judges, a few very conservative judges, “and then a vast group in the center-right and center-left.”
“Although it’s a little soon to tell, I think many of President Obama’s appointees will fit that description,” says Rosen, who is the director of Pepperdine University law school’s Ninth Circuit Appellate Advocacy Clinic.
If the Ninth Circuit is growing more liberal, the Supreme Court hasn’t noticed yet. The high court is on track to review only 12 Ninth Circuit decisions this term, down from last year’s 14, which was the fewest in five years.
PATH TO THE BENCH
Owens, 42, is a former federal prosecutor in Southern California who joined Munger Tolles in 2012, where his work included representing drilling company Transocean Ltd. in the criminal investigation arising from the Gulf of Mexico oil spill. His nomination was controversial only because of a long-running dispute between California and Idaho’s senators over the privilege of recommending a nominee. He was confirmed March 31 by a vote of 56-43.
Friedland, 41, is a Fulbright scholar who lectured at Stanford University for two years before joining Munger Tolles in 2004. As a partner, she helped notch two recent wins in high-stakes medical privacy cases, including one before the Second District Court of Appeal. She also represented same-sex couples fighting Proposition 8 at the California Supreme Court.
Friedland clerked for Supreme Court Justice Sandra Day O’Connor, who made a personal appearance at Friedland’s Judiciary Committee hearing last fall. Friedland nevertheless encountered a moderate level of opposition from committee Republicans.
“I approached cases neutrally as a law clerk at the D.C. Circuit and Supreme Court, and I always have presented issues neutrally when teaching law school classes,” she wrote in response to questions from Sen. Charles Grassley. “In my law practice, I have represented both plaintiffs and defendants, large corporations and not-for-profit organizations, and public institutions and individuals. I believe these experiences have prepared me for the neutral role I would be taking on if confirmed.”
The Senate voted to invoke cloture on Friedland’s nomination on Thursday. But under Senate rules, the nomination was subject to 30 hours of floor debate, which Republicans refused to waive. That pushed the scheduled vote to Friday afternoon, after many senators were expected to leave town for a two-week recess. Majority Leader Harry Reid vowed Thursday to keep the Senate in session until after the vote, saying “we’re not punting.”
But a few hours later, the Senate announced the vote was postponed until the resumption of the session April 28.
That theoretically gives opponents more time to mount an attack. But even if they do, it’s not clear they can overcome the Democratic majority in the Senate. “I think that she is a well-qualified nominee and will be confirmed,” said University of Richmond law professor Carl Tobias, who keeps close tabs on judicial nominations. “The GOP had nothing specific to say in opposition to her on the floor even though it had plenty of opportunity to do so.”
The Ninth Circuit processes some 12,000 appeals per year, with about 5,000 by written opinion, and is sure to welcome the additional resources Owens and Friedland can bring to the court. Democratic senators emphasized Thursday that the appeals court has been declared a “judicial emergency” by the U.S. Judicial Conference. Congress added a 29th seat to the court in 2009.
In addition to taking on everyday tasks, the two additional judges will help the court spread around the en banc caseload among more judges, Horvitz’s Rosen notes. He said he also hopes that a fully staffed court could rely less on visiting judges from district courts and other circuits to fill out three-judge panels. It’s “problematic,” Rosen said, when a non-Ninth Circuit judge casts a deciding vote on a three-judge panel.
Hellman believes the addition of two more Democratic appointees will be felt when the court holds votes on whether to take cases en banc. He points out that even if five Democratic appointees were to side with Republicans, the remaining Democrats could still form a majority to call a case en banc.
Unlike run-of-the-mill cases, en banc cases are the type that sometimes break down along ideological lines. In November, 11 Democratic appointees joined Chief Judge Alex Kozinski in dissenting from the court’s decision not to take a death penalty habeas case en banc, apparently falling just shy of a majority.
Still, when actually deciding cases en banc, the court has recently traced a middle path. Of the 10 most recent en banc decisions, four were written by GOP appointees. Two others bear the signature of Judge Ronald Gould, a centrist Democrat.
At the Supreme Court, the Ninth Circuit still continues to endure some reversals, but the frequency has been in steady decline over the past few years.
A big question now is whether any more judges will give up their seats this year and, if so, whether those vacancies could be filled before the November election, which might result in a GOP-controlled Senate.
Judge William Fletcher was one of four candidates interviewed for the deanship of UC-Berkeley law school earlier this year. He and seven other members of the court, all but one of them Democratic appointees, are eligible to take senior status, though none has publicly indicated plans to do so.
Vincent Eng, a lobbyist at Washington, D.C.’s The Veng Group who works on behalf of judicial nominees, said it’s unlikely that a new nominee could be pushed through by November, given the friction between the political parties and the already large backlog of judicial and executive nominations.
“There would have to be a vacancy very soon and general agreement with the senators on the nominee,” he said. “The nominee would have to go through expedited ABA vetting. Lastly, many of the existing circuit court candidates in vetting would have to be delayed or set aside, i.e., the Ninth Circuit candidate would have to jump the queue ahead of the circuit court candidates who are waiting to be nominated.”
Hellman agreed that the window is likely closed. If any Ninth Circuit judge intended to time his or her departure to have a successor confirmed in this Congress, he said, “he or she would have done it by now.”
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