Senate Confirms Watford to Overworked Ninth Circuit, Ending Obstruction of Filibustered Nominee

by Nicole Flatow

The U.S. Senate confirmed Paul Watford to a judicial emergency seat on the U.S. Court of Appeals for the Ninth Circuit Monday evening, after Senate Majority Leader Harry Reid moved to force a vote on his nomination.

Watford’s confirmation will provide some much-needed relief to the Ninth Circuit, which has more than twice the caseload of the next busiest circuit.

But the confirmation vote came only after Reid filed a motion to force a vote – the 27th he has had to file on President Obama’s judicial nominees. Before the scheduled cloture vote, senators agreed to instead hold an up-or-down vote on his nomination and confirmed him 61-34.

That a cloture motion was needed to secure a vote on Watford appalled Senate Judiciary Committee Chairman Patrick Leahy and others. After all, Watford had glowing endorsements from a host of prominent conservatives, including two former presidents of the Los Angeles Lawyer Chapter of the Federalist Society, two bloggers from the conservative legal blog The Volokh Conspiracy, and the general counsels for four major corporations.

Jeremy Rosen, one of the former presidents of the Federalist Society's Los Angeles Lawyer Chapter, called Watford a "home run" in a letter supporting his nomination, adding, "[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."

In a statement reacting to the vote, Leahy suggested that some Republicans opposed his nomination because he is too good of a candidate, and may someday be a contender for the Supreme Court.

“He is the kind of nominee who in the past would have received unanimous support,” Leahy said. “He has the qualifications, judgment and ability. Maybe it is that he is so well qualified and relatively young. It is as if some fear that he might someday be nominated to a still higher court so they want to avoid voting on his nomination.”

Watford will fill one of three judicial emergency seats on the Ninth Circuit. Another nominee for the appeals court, Andrew David Hurwitz, is also ready for an immediate Senate confirmation vote.

The vacancies caused by the delay of these nominees have not only meant overwhelming caseloads for judges and longer waits for litigants. They have also necessitated the frequent use of visiting judges from other circuits, a practice that many are now warning may affect the circuit’s precedent, and even further slow the dispensation of justice.

"Judges from outside our circuit don't know our law and don't really have any long-term interest in how our jurisprudence develops," Ninth Circuit Judge Marsha Berzon told the Daily Journal, a California legal newspaper [subscription-only].

Others, including U.C. Irvine Law School Dean Erwin Chemerinsky and Circuit Judge Diarmuid F. O'Scannlain, echoed Berzon’s concern that visiting judges may negatively impact the circuit’s precedent. 

What’s more, visiting judges are not familiar with the format for orders and procedures, and may take longer to handle a case. Between 2010 and 2011, median wait times to resolve cases in the circuit rose from 16.4 months to 17.4 months, the newspaper reports.

To learn more about the judicial vacancy crisis and follow developments, visit JudicialNominations.org, and click here to get involved with the ACS Judicial Nominations Issue Group.