Superficial Change on the Federal Bench?
California Lawyer

Superficial Change on the Federal Bench?

August 2012

illustration by Phil Foster

Related Articles

Federal Firsts August 2012

The process of selecting judges June 2009




When the U.S. Senate voted May 7 to confirm Jacqueline Nguyen to a position on the Ninth U.S. Circuit Court of Appeals, she became the first Vietnamese-American federal judge in history.

Her appointment is one of a striking number of firsts when it comes to President Barack Obama's judicial picks, especially in California. Others include Dolly M. Gee, appointed to the Central District of California, who became the first female Chinese-American federal judge in the country, and Lucy H. Koh, the nation's first Korean-American district judge, appointed to the Northern District.

But for those who had hoped Obama's election would herald an overhaul of the courts after eight years of conservative nominations from President George W. Bush, this progress has been met with muted applause; some see the expansion in diversity as coming at the expense of efforts to move the ideology of the courts leftward.

The White House has instead adopted what Glenn Sugameli, a lawyer for the environmental group Defenders of Wildlife who tracks judicial nominations, calls a "careful approach." But Sugameli acknowledges that the administration's recent confirmations are "a major accomplishment" that has changed the face of the judiciary from one that is predominantly old, white, and male.

As Sarah Binder, a scholar at the nonpartisan Brookings Institution points out, the White House has had to take into account robust Republican opposition in the Senate. "The White House, if anything, has been pragmatic about why, when, and how they are going to get these [nominees] confirmed," she says.

The exception that proves the rule is Goodwin H. Liu, the Taiwanese-American professor from UC Berkeley School of Law whom Obama nominated to the Ninth Circuit in February 2010. Republicans successfully filibustered Liu's confirmation just over a year later, prompting him to withdraw from consideration. (Gov. Jerry Brown subsequently appointed Liu to the California Supreme Court.)

"The White House cares about other issues and hasn't gone to the mat on any of the nominees," including Liu, Binder says.

Vacancies on the federal bench have actually risen since Obama took office. Fewer of his nominees have been confirmed than either Presidents Bush or Clinton had at this stage of their first terms. But of those Obama has gotten through, 13 new district court judges and 2 Ninth Circuit judges now serve in California.

"There's been some weakness from the administration in terms of taking the issue seriously," concedes Caroline Fredrickson, president of the liberal American Constitution Society.

As for the ideological spectrum of the federal judiciary, Fredrickson claims it's "pretty much the same" as when Obama took office.

Jeremy B. Rosen of Horvitz & Levy, a past president of the conservative Federalist Society's Los Angeles chapter, doesn't go quite that far. He believes the courts on the whole have moved slightly leftward under Obama, in the same way they moved rightward under Bush. "[L]ike President Clinton," Rosen says, Obama "has focused on nominating qualified, left-of-center people, many of whom also add diversity to the court."

But even Rosen likes some of the nominees, including the Ninth Circuit's Judge Paul Watford, a partner at Munger Tolles & Olson in Los Angeles whom the Senate also confirmed in May.

Watford in many ways typifies the people Obama has nominated. As an African American, he helps diversify the bench, yet his background as a federal prosecutor and litigator is as safe as it comes.

To Sugameli of Defenders of Wildlife, Republicans' initial resistance to Watford, a man liberals perceive as a mainstream candidate, just seems bizarre. Watford, he groans, is "a corporate lawyer, for God's sake."

We welcome your comments!


E-mail: (will not be published)

By submitting a comment, you agree to abide by our comment policy.

Enter the characters on the left: