Two 9th U.S. Circuit Court of Appeal judges have been suggested in legal blogs as potential replacements for Supreme Court Justice Antonin Scalia, Judges Paul Watford and Jacqueline Nguyen.
In addition, California state Supreme Court Justice Mariano-Florentino Cuéllar, appointed by Gov. Jerry Brown in 2014, is another named being tossed around.
So it may be fun to look at this trio’s history, whether they make President Obama’s cut or not.
Watford, a 48-year-old African-American, has impressive credentials. From 1994-95 he clerked for former Chief Judge Alex Kozinski, considered a libertarian/conservative, intellectual powerhouse on the 9th Circuit, and Justice Ruth Bader Ginsberg, a liberal on the U.S. Supreme Court. The notoriously grueling clerkships for Kozinski have made his clerks prime candidates for Supreme Court clerk jobs.
Watford practiced civil law in Los Angeles for Munger, Tolles & Olson from 2001 until he joined the bench in 2011. He worked primarily on appellate litigation. (Note: the Munger in that law firm is Charlie Munger, buddy to Warren Buffett and vice chairman of Berkshire Hathaway.)
During his 2011 confirmation fight Watford missed out on being part of a 14-judge deal Democrats made with Republicans to confirm Democrat nominees. So Watford was passed over briefly but eventually confirmed to the 9th Circuit on a 61-34 vote.
In 2001, he garnered important support from legal conservatives include UCLA law professor Eugene Volokh and southern California Federalist Society chapter president Jeremy Rosen.
One of his most noteworthy decisions on the 9th Circuit, which shows how his views might differ from Scalia’s, came last year when he wrote Patel v. City of Los Angeles. The 7-4 en banc ruling struck down a Los Angeles law that required hotel owners to keep customer information 90-days, including name, address, vehicle info, how the bill was paid, when and how long the guest stayed, even the room number. In addition, if police requested to see the information, a hotelkeeper had to provide it.
Hotel operators sued challenging the law.
Watford wrote that the law violated the hotel owner’s expectation of privacy and that a police request for registry information required a warrant under the Fourth Amendment. The case went to the U.S. Supreme Court, which split 5-4 in favor of the hotel owners. Interesting to note, it was Justice Scalia who wrote the dissent to argue a warrantless search is permitted in the closely regulated hotel business.
Watford has a law degree from UCLA and an undergraduate degree from UC Berkeley.
Jacqueline H. Nguyen
Nguyen, 50, became the first Vietnamese-American woman on the 9th Circuit in 2012, approved on a 91-3 vote of the Senate. She was born in Da Lat, Vietnam in 1965 and fled with her family in 1975, in the closing days of the war. Her father had been a Vietnamese Army major who worked with U.S. intelligence. The family lived in a tent-city refugee camp at Camp Pendleton, south of Los Angeles, for a month before moving to the Los Angeles area.
Nguyen began in private practice at Musick, Peeler & Garrett, from 1991-95. She then became a federal prosecutor in Los Angeles, eventually promoted to deputy chief of the general crimes section. Nguyen was then appointed to the state Superior Court bench in Los Angeles, serving from 2002-2009.
She was then nominated to a federal trial court judgeship in Los Angeles in 2009 by President Obama and then elevated to the 9th Circuit in May 2012 and has proven to be more philosophically moderate than other Obama choices.
In 2015, Nguyen wrote a 2-1 split panel decision, Alaska Wilderness League v. Jewell, upholding Shell Oil’s spill response plan for leases in the Beaufort and Chukchi Seas on Alaska’s Arctic coast, over environmental objections. She said the U.S. Bureau of Safety and Environmental Enforcement did not need to consult with other agencies on the plan’s impact of the Endangered Species Act of National Environmental Policy Act (NEPA).
In another split environmental decision, Nguyen provided the deciding vote in a 6-5 split en banc ruling that upheld more stringent national roadless rules in a 12-year legal battle, in Village of Kake v. U.S. Dept of Agriculture. Some 17 million acres of Alaska’s Tongass National Forest had been exempted from road building protections.
The roadless rule, enacted in the waning days of the Clinton Administration, limited timber harvesting, oil and gas drilling and other commercial uses on national forest land. The rule was weakened in the then-new Bush Administration.
Another Obama appointee to the 9th Circuit, Judge Andrew Hurwitz, wrote the 6-5 majority opinion saying the federal agency violated the law when it ignored earlier factual findings that would have protected the Tongass. Nguyen joined the Hurwitz majority.
Cuéllar, 43, who began work as a state Supreme Court justice in January 2015, came for an academic background, with good political connections. He served as a Stanford University law professor specializing in criminal and international law when he was plucked by Gov. Brown for the spot on the state’s highest court and he is married to a federal judge, U.S. District Judge Lucy Koh in San Jose.
(She’s been presiding over a years-long patent battle between Apple and Samsung.)
Cuéllar was born in Matamoros, Mexico and for years walked across the border daily to go to school in neighboring Brownsville, Texas. His family moved to the Imperial Valley of California when he was 14 and he is a naturalized U.S. citizen. He went on to earn a law degree from Yale and an undergraduate degree from Harvard College. He also has a Ph.D. in Political Science from Stanford.
His political connections include serving as co-chair of the Obama-Biden transition team’s Immigration Policy Working Group in 2008-09. He also served as special assistant to Obama for Justice and Regulatory Policy at the White House Domestic Policy Council in 2009 and 2010.
He also as a link to the 9th Circuit, having served as law clerk to Circuit Judge Mary Schroeder from 2000 to 2001.
In December, Cuéllar wrote the unanimous decision that was seen as a benefit to developers in environmental review. Calif Building Industry Assoc. v. Bay Area Air Quality Mgmt Dist. Cuéllar said that public agenies reviewing development plans don’t have to consider the environmental effects on future occupants unless the project itself would make conditions worse.
“It is the project’s impact on the environment – and not the environment’s impact on the project – that compels an evaluation of how future residents or users could be affected,” he wrote.
The Air Quality board was attempting to address health consequences of urban infill development near higher air pollution transit corridors. Prior to the Cuéllar ruling courts had faced a host of challenges over the reach of the state’s Environmental Quality Act (CEQA) and this clarified its limits.
And in a death penalty case upheld shortly before he joined the court, Cuéllar provided a decisive 4-3 vote to reconsider the case, People v. Grimes. It was the first time in 20 years a newly arriving justice had switched the balance of votes causing the court to reconsider a death case.
The issue was whether jurors in the penalty phase of the case should have been allowed to hear that Grimes’ co-defendant (who later committed suicide) said that he was primarily responsible for killing the 98-year-old victim. The original ruling was that it was harmless error to exclude the information. Cuéllar became one of four votes to reconsider.
Any of the three would make a fascinating addition to the high court.