Orrick Immigration Law Role May Hurt Judicial Bid

William H. Orrick III

Despite Republican opposition, William Orrick III ‘s nomination to California’s Northern District bench won approval by the Senate Judiciary Committee 11-7 on Thursday. He must face a full Senate vote to win confirmation.

Orrick has spent years as a civil litigator with Coblentz, Patch, Duffy & Bass, with a break for a turn in the U.S. Justice Department’s Civil Division where he oversaw the Office of Immigration Litigation. This is where he may have picked up the Republican opposition, in particular Sen. Chuck Grassley, R-Iowa, who voted against him in yesterday’s vote.

Grassley expressed concern over what he called Orrick’s “non-responsive” answers to Grassley’s immigration questions.

It may help to look at the written Q&A exchange between Orrick and Grassley during the nomination process. While in the Justice Department, Orrick worked on the hot-button litigation challenging Arizona’s law allowing, among other things, police to establish citizenship of people they stop or arrest, known as S.B. 1070. In addition, Orrick supervised work on a challenge to immigration laws in Alabama, South Carolina and Utah during 2010 and 2011.

Grassley wanted to know what Orrick’s role had been in the federal claim that federal law preempted the state actions.

“I helped coordinate the state immigration-related preemption litigation in district court,” Orrick said in response. “Regarding Arizona, I attended meetings were the impact of SB1070 on the operations of [the Dept. of Homeland Security] and law enforcement was discussed. I attended meetings where the preemption analysis of the lawyers working on this issue was discussed. I reviewed pleadings and circulated them in the Department of Justice and to both the Departments of Homeland Security and State for comment.

“I helped coordinate obtaining declarations from those departments. I discussed litigation deadlines, both external and internal. Along with several others, I helped prepare Mr. Kneedler for argument in the district court and attended the hearing,” he said.

“Once the case was appealed, my involvement diminished considerably. I was a recipient of drafts of briefs that were circulated and I was one of many who attended preparation sessions for oral arguments. In South Carolina and Utah, my role was similar to what I did in Arizona. In Alabama, my role was similar except that I also argued the government’s case for preliminary injunction in district court.”

In late 2012, the U.S. Supreme Court issued a 5-3 decision agreeing with the Obama Administration that sections of Arizona’s S.B. 1070 were preempted by federal immigration law. There was one exception, that was to the law’s section requiring police conducting a stop or arrest to make reasonable efforts to verify a person’s immigration status.

Asked by Grassley what his specific role was in developing the federal preemption argument in the Arizona case, Orrick responded that his earlier answer [quoted above] covered it. “While I participated in discussions about our arguments, the arguments and analysis were developed and ultimately adopted by others.”

When Grassley asked if Orrick would comment on Justice Antonin Scalia’s criticism of the Obama Administration’s argument and rejection of its theory, Orrick declined as inappropriate for a prospective federal judge.

Grassley had considerably more to ask about immigration policy and expenditures on enforcement, which Orrick generally declined to answer.

Obama nominated Orrick in 2012 along with Jon Tigar, an Alameda County Superior Court judge. Tigar was confirmed and will hearing cases this month. Orrick’s nomination languished in the run up to the election and finally expired. He was renominated by Obama in January.

He comes with a judicial pedigree. His father, the late William Orrick Sr., served as a federal judge on the same court for many years. His father also worked in the Justice Department during the Kennedy Administration.

See the entire Judicial Committee’s questions here.




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