Washington—The Senate today advanced the nomination of John Owens of California to serve on the U.S. Court of Appeals for the Ninth Circuit. The final vote on his confirmation is scheduled for Monday.
Senator Dianne Feinstein (D-Calif.) offered the following remarks on the Senate floor in advance of the cloture vote:
“I have come to the floor to urge my colleagues to support the nomination of John Owens to the U.S. Court of Appeals for the Ninth Circuit. This was approved by the Judiciary Committee without dissent.
I would like to quickly mention his qualifications. He received his bachelor’s with high distinction from the University of California in 1993 and was inducted into Phi Beta Kappa. He graduated first in his class at Stanford Law School in 1996.
From 1996 to 1997 he was law clerk to Judge J. Clifford Wallace, a noted conservative jurist appointed by President Nixon to the Ninth Circuit. He then went on to serve as a law clerk to Supreme Court Justice Ruth Bader Ginsburg.
In 2001 John Owens became a federal prosecutor, joining the U.S. Attorney’s Office in Los Angeles, California. He began in the general crimes section, prosecuting a wide variety of violent crimes—drug crimes. He also served in the public corruption and government fraud section.
[From 2004 to 2012, he served in the U.S. Attorney’s Office in San Diego. There,] primarily his focus was prosecuting complex crimes, including fraud, health care, money laundering, public corruption, and national security.
He has had occasion to receive more than one award, among them the Director’s Award for Superior Performance from the Justice Department. Mr. Owens has broad support, and the American Bar Association has given him their highest rating of “well qualified.”
The problem that has arisen around this nomination, though, is not really his qualifications because the record will bear those qualifications out. It is the longstanding discussion over the seat vacated by Judge Stephen Trott. There is a history here, and I would like to explain it.
This seat has been vacant for over 9 years—since Judge Trott took senior status in December 2004. It is the longest running vacancy in the entire federal judiciary. The Ninth Circuit has the greatest number of pending appeals per panel. It takes longer than other circuits to resolve an appeal. It makes no sense for this seat on the busiest circuit to stay vacant any longer.
My colleagues from Idaho have asserted that this is a vacancy which should be filled by someone from their State. Let me explain why that is not the case.
Judge Trott, whom Mr. Owens would replace, spent his entire legal career in California before joining the Justice Department under President Reagan. Throughout his career he was licensed to practice law in one State—California.
Beginning in 1965 he served as county prosecutor in Los Angeles. In 1975 he sought the position of DA from the Los Angeles County Board of Supervisors after then-district attorney Joseph Busch passed away.
When John Van De Kamp was named district attorney, Trott was chosen as his chief deputy, the second in command in the Los Angeles District Attorney’s Office. In 1981 President Reagan appointed Mr. Trott to be U.S. attorney for the Central District of California.
All these things are happening in California. He was recommended for the U.S. attorney position by Senator S.I. Hayakawa of California.
In 1982, while serving as U.S. attorney, he again submitted an application to the Los Angeles County Board of Supervisors to become DA after the DA, John Van De Kamp, was elected to be California’s attorney general.
Trott was nominated by President Reagan in 1983 to serve as Assistant Attorney General for the Criminal Division at the Department of Justice. At his confirmation hearing for that position, Senator Pete Wilson of California introduced him. Judge Trott’s official Judiciary Committee biography states that his legal residence at the time was California.
Now, this is all about whether Trott occupies an Idaho seat or a California seat.
In 1986 he was nominated by President Reagan to be Associate Attorney General. Once again Senator Wilson of California introduced him at his confirmation hearing, and once again his official Judiciary Committee biography states that his legal residence at the time was California.
In 1987 President Reagan nominated Trott to the Ninth Circuit. The Judiciary Committee sent blue slips to Senators Wilson and Cranston of California.
That is the point. The point is that historically Judge Trott has occupied a California seat. He stated in his committee questionnaire that his “two clients have been the People of the State of California and the Government of the United States.”
Judge Trott was confirmed in 1988 to a seat previously held by Judge Joseph Sneed, a California nominee. That judge’s connection to the Ninth Circuit prior to his appointment was his 9-year tenure as professor at Stanford Law School. Judge Sneed established his chambers in San Francisco. These are the facts.
Judge Trott was a California nominee to a California seat on the Ninth Circuit Court of Appeals, as was his predecessor. Once confirmed, however, Judge Trott made a personal choice to establish his chambers in Idaho. This personal choice—essentially an arbitrary occurrence—cannot result in a State losing a judgeship to another State.
As we all know, the overwhelming practice of administrations and Senates of both parties has been to retain each State’s representation on its respective circuit. Just look at the makeup of the circuits represented by the members of the Judiciary Committee.
Both Iowans on the Eighth Circuit occupy Iowa seats. Three Alabamians on the Eleventh Circuit occupy Alabama seats. All of the Texas judges on the Fifth Circuit, who are not the first occupants of their seats, were preceded by Texans.
The Senate recently confirmed Carolyn McHugh to the Tenth Circuit. Judge McHugh was strongly supported by Senators Hatch and Lee, and she replaced Michael Murphy, who had been a Utah nominee.
I could go through the history of each circuit, and the same pattern would emerge time after time. This is not by accident. There is a reason for it. Presidents of either party must know which Senators to consult, and Senators must know which vacancies to make recommendations for.
This might sound like inside baseball to some, but it is fundamental to the Senate’s advice and consent role, and no Senator of either party would allow the arbitrary occurrence of a judge’s personal choice of residence to remove a judgeship from the Senator’s home State. This is a precedent this body cannot allow to be set.
Some might accuse California of trying to take more than its share of seats. This is simply not so. There is no objective reason for the Trott seat to be transferred to Idaho, where Judge N. Randy Smith already occupies that State’s seat on the circuit.
By every metric—population, appeals generated, district court caseload—California has far less than its proportional share of circuit judgeships and Idaho already has its fair share. In fact, if Idaho were to get an additional judgeship, its representation on the Ninth Circuit would be 5 1/2 times its share of caseload. That is ridiculous.
Idaho would have twice as many seats as Montana and the State of our Presiding Officer, Hawaii, have even though those States generate more Ninth Circuit cases than Idaho. Nothing supports removing this seat from California to Idaho—not history, not population, not caseload. Nothing.
Let me conclude by saying this: I don’t begrudge the Senators from Idaho seeking additional federal judicial resources for their state.
Senators Crapo and Risch have introduced a bill to create a new judgeship on the federal district court in Idaho. I represent four judicial districts that virtually always have caseloads at judicial emergency levels. One of them—the Eastern District of California—is the most overburdened judicial district in the country and has a caseload that is more than double the national average.
So I understand the desire of the Senators from Idaho to ensure that a sufficient number of federal judges are present in their State to resolve the disputes of their constituents.
In fact, I am a cosponsor of the Federal Judgeship Act of 2013, which would create all the new judgeships recommended by the Judicial Conference, including one for Idaho. But the fact remains this seat on the Ninth Circuit was previously held by two Californians and it should be filled by a Californian.
I very much hope the Californian will be John Owens, who has an impeccable record, bipartisan support, and whom I am proud to have recommended to President Obama, and whom I would urge my colleagues to support.”