Obama's Judges
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Obama's Judges

March 2014

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During the testy 2012 Senate confirmation hearing on Ninth Circuit judicial nominee Paul J. Watford - then a partner at Munger, Tolles & Olson in Los Angeles - Sen. Chuck Grassley (R-Iowa) asked Watford why he had argued in one case that an Arizona law barring illegal aliens from soliciting work violated the First Amendment. Sen. Tom Coburn (R-Oklahoma) also pressed Watford on hot-button issues, asking him whether he agreed with Supreme Court Justice Anthony M. Kennedy's reliance on "evolving standards of decency" to hold that juveniles cannot be executed for murder.

One month later, GOP senators grilled nominee Andrew D. Hurwitz - then an Arizona Supreme Court justice - about whether he had influenced the Roe v. Wade ruling while a law clerk four decades earlier. Sen. Jeff Sessions (R-Alabama) asked Hurwitz, "Do you believe there are any significant differences between an unfertilized ovum and a human fetus?"

Watford, an African-American partner who had previously clerked for the Ninth Circuit's current Chief Judge Alex Kozinski, and for U.S. Supreme Court Justice Ruth Bader Ginsburg, squeaked through Senate confirmation on a vote of 61-34 - just two votes clear of a potential filibuster.

Senate Democrats got the message. In a deal worked out between Majority Leader Harry Reid (D-Nevada) and Republican leaders, Hurwitz was confirmed last year on a voice vote - bypassing another hazardous roll call.

The two confirmations gave President Barack Obama five judges on the Ninth Circuit: Watford, Hurwitz, Mary H. Murguia, Jacqueline Nguyen, and Morgan B. Christen. Two more nominees - John B. Owens and Michelle T. Friedland, both also partners at Munger Tolles - are awaiting Senate action to fill the last vacancies on the 29-judge court.

Three nominations from the ranks of Munger Tolles is unusual, but may not be significant. Jeffrey L. Bleich, a longtime friend of President Obama who returned to the firm in December after four years as U.S. Ambassador to Australia, says, "While I enjoyed singing the praises of all three of them, they all received attention from the White House and California senators without my help."

When Owens and Friedland join the Ninth Circuit, as expected, there will be 20 Democratic and nine Republican appointees: 10 women, 5 Hispanics, 2 African Americans, and 1 Asian American (Nguyen, who was born in Vietnam) among them.

Some conservatives in Congress have written off the circuit as hopelessly liberal, shifting their efforts to holding the line in other appellate districts. But senators focusing a weather eye on Watford and Hurwitz overlook the moderate bent of Obama's appointees, particularly Judges Murguia and Nguyen.

Based on their rulings so far, the five Obama appointees appear to be expanding the court's center rather than joining its liberal wing, which includes Judges Harry Pregerson, Stephen R. Reinhardt, William A. Fletcher, Richard A. Paez, and Marsha S. Berzon. The new judges have tacked right-of-center in some cases, and left-of-center in others.

Murguia joined the court in 2010 after a decade on the federal bench in Arizona. One of the five Hispanic judges, she had been a career prosecutor appointed to the district court by President Bill Clinton on the recommendation of conservative Sen. Jon Kyl (R-Arizona).

Nguyen, who joined the Ninth Circuit in 2012, was a federal prosecutor in Southern California, then a superior court judge before Obama appointed her to the Central District of California in 2009.

Christen, among the more liberal appointees, had been a justice on the Alaska Supreme Court and a trial court judge before her nomination. She studied in England, Switzerland, and China before earning a degree in International Studies, and served on Planned Parenthood of Alaska’s board. Last year Christen signed an opinion upholding California's law banning mental health professionals from using "conversion therapy" to change the sexual orientation of minors; in January, the full Ninth Circuit let the ruling stand despite a call for rehearing en banc from three conservative judges. (Pickup v. Brown, 2014 WL 306860 (9th Cir.).)

Random selection for the eleven-judge en banc panels makes it unlikely that many of Obama's appointees will sit together. But in one en banc ruling with four of the newest judges seated, Murguia, Christen, Watford, and Hurwitz joined the court majority. Hurwitz wrote the opinion reinstating compulsory arbitration of a dispute over tuition brought by students of a failed flight-training school. The liberal Pregerson alone dissented, arguing that the ruling stripped students of recourse in either state or federal court for what he called an "unconscionable" arbitration clause. (Kilgore v. KeyBank, Nat'l Ass'n, 718 F.3d 1052 (9th Cir. 2013) (en banc).)

The Obama judges cast the deciding votes when another en banc panel struck down a Los Angeles ordinance authorizing warrantless, on-site inspections of hotel guest records by any police officer. Watford, joined by Murguia and Christen plus two Republican and two Democratic appointees, wrote that to pass Fourth Amendment muster, the ordinance must allow operators to challenge the reasonableness of police inspections. The ruling would have been different had two of the Obama appointees joined a dissent by four conservatives - Judges Diarmuid F. O'Scannlain, Richard C. Tallman, Richard R. Clifton, and Consuelo M. Callahan. (Patel v. City of Los Angeles, 738 F.3d 1058 (9th Cir. 2013) (en banc).)

Murguia is the best example so far of the centrist tendencies among Obama's appointees. In September she dissented, along with three conservatives and moderate Susan P. Graber, on a 6-5 ruling in a capital case. The panel minority opposed a stay of execution to permit review of the defendant's ineffective assistance of counsel claim. Three other Obama appointees - Christen, Nguyen, and Watford - voted with court liberals to grant the stay. (Detrich v. Ryan, 2013 WL 4712729 (9th Cir.) (en banc).)

In January, Murguia sided once again with conservative judges upset that a majority of the court had refused en banc reconsideration of the legality of California's Low Carbon Fuel Standard Program (Cal. Code Regs. tit. 17, §§ 95480-95490 (2011).) The original three-judge panel, with Murguia in dissent, had held that the state's ethanol regulations did not discriminate against out-of-state competitors. (Rocky Mountain Farmers Union v. Corey, 730 F.3d 1070 (9th Cir. 2013).)

The next day, however, Murguia joined four liberals in dissent in a capital case. The en banc panel, she agreed, should have gone further than simply granting a stay of execution pending a hearing on a claim of ineffective assistance of counsel; Christen's minority opinion held that the death penalty in any case was unreasonable punishment for a getaway driver who did not participate in any killings. (Dickens v. Ryan, No. 2014 WL 241871 (9th Cir.) (en banc).)

Murguia is not the only Obama appointee to cast votes that may seem more typical of conservatives. In September, Nguyen dissented from a decision that reinstated an excessive force suit against a Washington state police officer for using a stun-gun on a passive bystander who failed to move away from an arrest scene. Nguyen argued the majority failed to view the event through the "eyes of a reasonable officer." (Gravelet-Blondin v. Shelton, No. 728 F.3d 1086 (9th Cir. 2013).)

Christen, Watford, and Hurwitz also stuck with conservatives in an 8-3 en banc vote in December, rejecting a Fourth Amendment claim that a border patrol agent's search of a car 70 miles north of the Mexican border was illegal. (United States v. Valdes-Vega, 738 F.3d 1074 (9th Cir. 2013) (en banc).)

Murguia's role on the court should become even more significant in the years to come. This November, Kozinski's seven-year term as chief judge ends, and Judge Sidney R. Thomas, a Clinton appointee, will take the helm. If Thomas completes his full term and Murguia remains on the court, she's in line to be the next chief - who sits on every en banc panel. Together, the tenures of Thomas and Murguia would mark a 14-year reign of Democratic appointees at the top of the Ninth Circuit.

Whether that possibility bears much significance remains to be seen. "There is some indication [Obama's appointments] fall between the Carter and Clinton appointees - they're not as liberal as Carter's," says Arthur D. Hellman, a University of Pittsburgh law professor who has studied the Ninth Circuit for more than two decades. "Overall, they are more like the Clinton judges," he says, citing the differences exposed in Valdes-Vega.

David A. Schlesinger, a partner at San Diego's Jacobs & Schlesinger who frequently appears before Ninth Circuit panels, says Obama's judges "can be characterized as center-left judges, and their jurisprudence bears that out. They are all clearly left-of-center, but none remotely approaches the liberal wing represented by judges Pregerson, Reinhardt, Berzon, Paez, and Fletcher." That said, Schlesinger finds Murguia especially "difficult to categorize" and "certainly not predictable."

Conservative court watchers don't seem particularly alarmed by the recent appointments. "Generally, the Ninth Circuit is so beyond hope that any further damage isn't as meaningful as in other federal circuits," says Edward Whelan, president of the Ethics and Public Policy Center in Washington, D.C. Whelan, who clerked for Ninth Circuit Judge J. Clifford Wallace and U.S. Supreme Court Justice Antonin Scalia, notes that because so many judges in the circuit are based in California, "the two California senators end up with extraordinary influence."

But Whelan warns, "The more the court is dominated by liberal California judges, the more pressure there will be by senators in other [Ninth Circuit] states to push for a split in the circuit."

Pamela A. MacLean is contributing writer at California Lawyer.

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