U.S. Court of Appeals for Ninth Circuit

  • June 12, 2012

    By Nicole Flatow

    The Senate confirmed Andrew Hurwitz on Tuesday to fill a judicial emergency seat on the U.S. Court of Appeals for the Ninth Circuit. The confirmation will deliver some welcome relief to the overworked Ninth Circuit, which has more than twice the caseload of the next-busiest circuit.

    But to even reach today’s vote on Hurwitz, Senate Majority Leader Harry Reid was forced to file a motion to invoke cloture, a once-extraordinary measure to which Reid has had to resort 28 times to push through long-pending Obama judicial nominees.

    Just last month, Reid resorted to a cloture motion to push through another Ninth Circuit nominee with broad bipartisan support, Paul Watford. And over the past few months, he has escalated his effort to overcome record obstruction of judicial nominees, and curb the persistent judicial vacancy crisis on the federal courts. Even more extraordinary is that 25 of these 28 nominees were confirmed after motions to invoke cloture and months of delay, many with near-unanimous support

    One nominee who did not survive a motion to invoke cloture was Caitlin Halligan [pictured], nominated to the influential U.S. Court of Appeals for the D.C. Circuit. The Senate’s filibuster of Halligan, a former New York State solicitor general with broad bipartisan support, prompted outrage from President Obama and many legal leaders. Obama lamented at the time that the Senate’s vote “dramatically lowers the bar used to justify a filibuster.”

    Because some Republican senators blocked an up-or-down vote on Halligan in December, her nomination was sent back to President Obama at the end of the last session of Congress.

    In a strong statement backing his nominees this week, President Obama sent Halligan right back to the Senate, re-nominating her to the D.C. appeals court, along with Sri Srinivasan, the principal deputy solicitor general at the Department of Justice.

    "This important court is often called the nation's second-highest court, and it stands more than a quarter vacant," Obama said. "I remain deeply disappointed that a minority of the United States Senate blocked Ms. Halligan's nomination last year and urge her reconsideration, especially given her broad bipartisan support from the legal and law enforcement communities."

  • February 3, 2012

    by Nicole Flatow

    The Senate Judiciary Committee yesterday approved the nomination of law firm partner Paul Watford [pictured] to the U.S. Court of Appeals for the Ninth Circuit, a circuit that is now handling double the caseload of other federal circuit courts. But not a single Republican voted to send Watford’s nomination to the Senate floor.

    The 10-6 party-line vote (with two Republicans voting “present”) seems to signal an about-face from the broad bipartisan support Watford received when he was nominated in October.

    "[E]veryone who knows Paul (whether they are conservative or liberal, or somewhere in between) recognizes that he possesses the qualities that are most needed in an appellate judge,” said Jeremy Rosen, former president of the Los Angeles Lawyers Chapter of the Federalist Society, in a letter to senators calling the nomination of Watford a “home run.”

    “Paul is the sort of Democratic nominee that moderates and conservatives, as well as liberals, should solidly support,” said Eugene Volokh, a blogger for the conservative blog, The Volokh Conspiracy.

    Others who voiced their support included David Collins, a colleague of Watford’s at Munger, Tolles & Olson who was a lawyer for both Bush administrations and clerked for U.S. Supreme Court Justice Antonin Scalia, and Orin Kerr, a professor at George Washington University and fellow blogger for The Volokh Conspiracy.

    Yet, in a statement opposing Watford’s nomination yesterday, ranking Judiciary Committee Republican Charles Grassley urged his fellow senators to vote against Watford because of “substantive concerns” about his work on immigration and death penalty cases.

  • May 26, 2011

    by Jeremy Leaming

    Goodwin Liu, nominated to the U.S. Court of Appeals for the Ninth Circuit, withdrew his nomination, citing the federal bench’s dire need for judges, after Republicans successfully blocked the nomination last week.

    In a May 25 letter to President Obama, Liu wrote:

    The nomination has been a source of tremendous pride for my family and community, and it would be a great privilege and responsibility for me to serve our country as a member of the judiciary.

    In light of last week’s unsuccessful cloture vote, however, I respectfully ask that you withdraw my nomination from further consideration by the United States Senate. With no possibility of an up-or-down vote on the horizon, my family and I have decided that it is time for use to regain the ability to make plans for the future. In addition, the Judicial Council of the Ninth Circuit has noted ‘desperate need for judges’ to fill current vacancies, and it is now clear that continuing my nomination will not address that need any time soon.

    ACS Executive Director Caroline Fredrickson scored Republican senators for obstructing the nomination:

    The Republican senators who filibustered the Goodwin Liu nomination did so only a few years after demanding up-or-down votes on President Bush's judicial nominees. Many of these senators even claimed that filibusters of judicial nominees are unconstitutional. But now for partisan advantage, they have abandoned their principles in favor of obstructionism.

    The Senate Republicans' efforts to delay and obstruct President Obama's judicial selections are harmful to our democracy and have caused a crisis in our judiciary. Vacancies on the federal bench have skyrocketed, causing lengthy delays in our courts' ability to dispense justice. Our judicial branch is not a political plaything but an indispensable part of our system of government. It is time for Senate Republicans to rise above their party’s short-sighted gamesmanship and serve their country.

    The New York Times in a recent editorial on the Senate filibuster of Liu said the “Republican argument against him was laughably thin.” It had little to do with Liu’s academic writings, the editorial noted, and more with Republicans’ need to satisfy a base instinct.

    “Mr. Liu dared to criticize Justice Samuel Alito Jr. as harshly conservative before he was confirmed to the Supreme Court," the editorial states. "The filibuster was payback, and the Republican eagerness for revenge has broken faith and a clear understanding on the Senate floor [regarding confirmation of judicial nominations]. That will make it harder to fill benches during this administration and many more to come.”

    In a piece for Slate, Dahlia Lithwick wrote:

    Liu was caricatured as a left-wing "radical" and "activist" although he had the unconditional backing of conservatives such as Kenneth Starr and Clint Bolick. Yet Republicans who were willing to judge him in print and on the Senate floor were unwilling to put his nomination to a vote.

    Following the failure of the cloture motion last week, Fredrickson said, “Those senators who voted against cloture are ushering in an era of unprecedented obstructionism, and threaten to bring our system of justice to a grinding halt.” ACS Board Chair and University of Chicago law school Professor Geoffrey R. Stone blasted Republican senators for “meritless obstruction ….” Their entire statements are available here.  

    Stone also wrote about the obstruction of Liu’s nomination in a May 24 piece for the Chicago Tribune saying it shows “how destructively polarized national politics has become ….”

    Follow the latest on judicial nominations and the rising number of vacancies on the federal bench at JudicialNominations.org.

  • May 19, 2011

    by Jeremy Leaming

    Peddling rightwing attacks on federal appeals court nominee Goodwin Liu, Republican senators today blocked the noted constitutional law professor’s nomination to the U.S. Court of Appeals for the Ninth Circuit. The cloture motion, which needs 60 votes to pass, failed on a 52 to 43 vote, thereby preventing an up-or-down vote on the nomination. (Roll Call Vote is available here.)

    ACS Executive Director Caroline Fredrickson scored Republicans for their delaying tactics, saying “Those senators who voted against cloture are ushering in an era of unprecedented obstructionism, and threaten to bring our system of justice to a grinding halt.”

    ACS Board Chair Geoffrey R. Stone also weighed in, saying “Since President Obama took office, some Republican senators have made an art of delaying votes on qualified nominees who have broad bipartisan support, thus threatening the capacity and integrity of our system of justice.” 

    Their entire comments are available here.

    A stream of Republicans took to the Senate floor this afternoon, and proceeded to tar Liu as an ideologue with an extreme judicial philosophy unfit for an appointment to the federal bench. Other Republicans said Liu did not have the adequate discretion to serve as a life-tenured judge, citing some of Liu’s statements in opposition to Samuel Alito’s nomination to the U.S. Supreme Court.

    Democrats, such as Sen. Dick Durbin, blasted Republicans’ obstructionism, saying it was intended to keep as many federal court seats open in hopes that a Republican captures the White House in 2012.

    Sen. Christopher Coons of Delaware said in support of allowing a vote on the nomination:

    The notion that, somehow, Professor Liu is an ideologue on these issues is belied by his actual record. As a scholar, Professor Liu has supported market-based reforms to promote schoolhouse diversity, reforms that are often labeled conservative.

    Senate Judiciary Chairman Patrick Leahy, in his floor statement, noted that “for the sixth time since President Obama took office 28 months ago we have had to seek cloture to overcome a Republican filibuster of one President Obama’s judicial nominations. Regrettably, the Republican filibuster of Professor Liu’s nomination continues the pattern they set as soon as President Obama took office. This is a far cry from when Republican Senators were insisting just a few years ago that such filibusters of judicial nominees were unconstitutional.”

    Texas Sen. John Cornyn blamed Democrats for the filibuster of Liu’s nomination, and TPM reports on Cornyn’s wobbly reasoning here.

    Sen. Majority Leader Harry Reid, who filed the motion to force Republicans to explain their pattern of obstructing the president’s judicial selections, noted a string of statements from Republican senators espousing the need for up-or-down votes on judicial nominations, albeit many of those comments came when the White House was controlled by a Republican.

    Sen. Barbara Boxer, a staunch supporter of Liu, blasted Republicans’ tactics calling the situation “an outrage.”

    It is a sad day for our country,” Boxer continued, “when we reject a brilliant young scholar who would have been the only Asian-American serving on the Ninth Circuit, which is home to more than 40 percent of our nation’s Asian American population.”

    To get the latest on the efforts to fill federal court vacancies, visit JudicialNominations.org.

  • May 19, 2011
    Guest Post

    By Adam Winkler, Professor of Law, UCLA School of Law


    Does Goodwin Liu’s stalled nomination to the federal bench signal the end of judicial nominations for academics? Law professors have never been the darlings of the Senate Judiciary Committee – or even of presidents considering appointments to the federal courts. What’s happening with Goodwin Liu may yet further reduce the likelihood of law professors receiving nominations in the future.

    Law professors aren’t natural choices for federal judgeships to begin with. Nominations for the lower federal courts often come from the senators in the state in which the vacancy arises, and law professors don’t tend to be politically connected players close with elected officials. As a general matter, we don’t make much money, contribute much to campaigns, or raise much for candidates. So when senators recommend nominees to the president, they are more likely to be partners at big firms than professors from big schools. (The Supreme Court is an obvious exception; over the past century, the Court was filled with law professors, from Frankfurter and Douglas to Scalia and Kagan.)

    Even if a law professor scores a nomination, today’s highly polarized confirmation process, coupled with new technologies, make confirmation very difficult. Any law professor that writes on a politically contentious issue like abortion, affirmative action, or same-sex marriage will have those writings used against him. This isn’t unique to law professors; any writings of any nominee will be scrutinized. A sitting judge, however, can explain away controversial opinions by saying they don’t reflect her personal views but were required by precedent. Law professors don’t have that easy out – as Liu’s case shows. Republicans have refused to allow Liu to win confirmation because of his writings in favor of affirmative action and against torture.

    Of course, not all law professors will face the same difficulty. Elena Kagan was confirmed despite being a former law professor. Kagan, however, had written only a handful of scholarly articles and most of them argued for broad free speech rights – a position that both Republicans and Democrats could accept. When staffers went out to search her articles for statements they could use against her, the only “gotcha” they found was her criticism of judicial nominees who refuse to discuss their views. 

    It’s no longer just the nominee’s writings that matter. Before Kagan was named, ACS Board member Pamela Karlan, of Stanford Law School, was one name bandied about as a potential nominee. But it was easy to go on YouTube and find videos of Karlan, who speaks at numerous events, making sarcastic, biting remarks on nearly every hot-button issue of the day. Though those who see her in person know that her most outrageous statements are meant to be humorous -- Karlan gets more laughs than any other law professor I know -- they are easy fodder for opponents.

    The message for law professors from these examples is clear: if you want to become a judge one day, don’t write too much, write on non-controversial topics, and watch what you say at speaking events. The world is watching.