California wins out over Idaho in fight over 9th Circuit Court post

Tribune Washington BureauMarch 31, 2014 

— California prevailed over Idaho on Monday in a long battle over the fate of a key judicial post, thanks largely to the Democrats’ change last year to long-standing Senate filibuster rules.

The Senate voted 56-43 to confirm John B. Owens for a seat on the 9th U.S. Circuit Court of Appeals, filling a seat that has been open since 2004 - the longest vacancy in the federal court system.

Owens, who has practiced law for the Los Angeles firm of Munger, Tolles & Olson since 2012, was nominated by Obama in August.

The difficulty in confirming a candidate was about geography rather than ideology, rooted in the decision of the previous occupant of the seat, Stephen Trott, to base himself in Idaho despite having worked most of his professional career in California.

Trott was a former Los Angeles prosecutor and U.S. attorney until he joined the Justice Department during the Reagan administration. Upon his confirmation in 1988 to fill a seat held by another Californian, Joseph Sneed, he established his chambers in Boise.

To Sen. Dianne Feinstein, California’s senior senator and a longtime member of the Senate Judiciary Committee, Trott’s decision was "essentially an arbitrary occurrence" that upset the practice of preserving a state’s representation on circuit courts. By most metrics, Feinstein argued, California is now underrepresented in the 9th Circuit, and that other states with populations nearer to Idaho’s also have a single judge on the panel.

"If Idaho were to get an additional judgeship, its representation on the 9th Circuit would be 5 Å times its share of caseload. That is ridiculous," she said.

But Republican Sen. Mike Crapo of Idaho maintains that California, which already has 13 of 27 active 9th Circuit judges, is taking what has been an "Idaho seat" for decades. He noted that President George W. Bush nominated an Idahoan when the seat first became vacant, but that the nomination was blocked by Feinstein.

"In those days filibusters worked," Crapo said in an interview.

Crapo said he had been working for years with Feinstein as well as the Obama administration to settle the issue, and believed they were on a path to a resolution until Democrats changed the Senate’s filibuster rules last fall to lower the threshold for confirming most presidential nominations from 60 votes to a simple majority. That ended the chance for Crapo to use the tools Feinstein had enjoyed when she was in the minority to protect his state’s interests.

"We’re seeing the reality of the impact of the rules change that the majority enacted," he said.

Crapo said, however, that Feinstein has indicated a willingness to continue working with Crapo to advance a judicial reform bill that would potentially have added new a judgeship in his state. Feinstein reiterated support for the measure in her floor speech last week.

"But the fact remains this seat on the 9th Circuit was previously held by two Californians and it should be filled by a Californian," she said.

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