Michelle Friedland during her confirmation hearing before the Senate Judiciary Committee to be a U.S. judge for the Ninth Circuit. (Photo by Diego M. Radzinschi/THE NATIONAL LAW JOURNAL)
SAN FRANCISCO — It’s a full house at the Ninth Circuit.
Munger Tolles & Olson partner Michelle Friedland was confirmed to the court Monday, squeaking through the Senate with 51 votes. Along with former Munger Tolles partner John Owens, who was confirmed last month, the U.S. Court of Appeals for the Ninth Circuit now stands at 29 active judges, the most in its history.
“All of us are delighted to be at full strength for the first time in I don’t know how many years,” Judge William Fletcher said.
Twenty-two to be precise, according to a court statistic. The Ninth Circuit has had at least one vacancy since then. A 29th seat was added to the court in 2009.
Friedland taught at Stanford Law School before joining Munger Tolles in 2004, where she focused on dispositive motions and appellate work. She also helped represent same-sex couples challenging Proposition 8, winning recognition from the ACLU for her work. Retired Supreme Court Justice Sandra Day O’Connor, for whom Friedland clerked 12 years ago, appeared at her Senate Judiciary Committee hearing in a bid to defuse partisan reactions to her nomination.
Still, Susan Collins of Maine was the only Republican senator to support Friedland’s confirmation on Monday. Votes on federal appeals court judges have been mostly along party lines since the Democrats invoked the nuclear option against filibustering last fall. But on Friday, five Democrats did not show up to vote, including three facing reelection this fall and negative advertising over their judicial votes: Mary Landrieu of Louisiana, Mark Pryor of Arkansas and Mark Begich of Alaska.
University of Richmond law professor Carl Tobias, who tracks judicial nominations, noted the Senate is coming off a two-week recess and senators such as Begich have a long way to travel and might prefer to spend the time campaigning. He called the ads “full of untruths.”
At 41, Friedland will be among the youngest judges to serve in the appellate court’s history, according to a press release from the court. Only Mary Schroeder at 38, Anthony Kennedy at 38 and Alex Kozinski at 35 were younger when appointed.
Friedland also has the distinction of being the 100th judge appointed to the court. She succeeds Judge Raymond Fisher and will keep chambers in San Francisco.
“The Ninth Circuit is the nation’s busiest federal appellate court,” said Kozinski, now the court’s chief judge, in the press release. “Having a full bench will bolster the court’s ability to dispense justice and resolve disputes in a fair and timely manner.”
The Ninth Circuit has the highest caseload per active judgeship among the federal appellate courts, and even with 16 senior judges on the roster, the court has been forced to share some of its caseload with visiting judges. Fletcher said Monday the addition of Friedland and Owens will help ease the burden, but he expects the visiting judges program to continue.
Owens was sworn in on Friday at the federal courthouse in San Diego.
Judge J. Clifford Wallace, for whom he clerked 17 years ago, administered the oath of office. U.S. Attorney Laura Duffy of San Diego, and two of her predecessors, Carol Lam and Karen Hewitt, were among those who spoke on Owens’ behalf. He worked with all three as a federal prosecutor before joining Munger Tolles in 2011.
Owens, 42, clerked for Supreme Court Justice Ruth Bader Ginsburg and worked at O’Melveny & Myers before launching his prosecutorial career. He succeeds Judge Stephen Trott and will be based in San Diego.
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