Spat between California and Idaho politicians could endanger 9th Circuit nominee

By John Roemer

Daily Journal Staff Writer

An unhealed political wound looks likely to impede last week's nomination of John B. Owens to the 9th U.S. Circuit Court of Appeals.

President Barack Obama wants the Munger, Tolles & Olson LLP partner in Los Angeles to fill the seat vacated when Circuit Judge Stephen S. Trott of Idaho took senior status nearly a decade ago.

If confirmed by the U.S. Senate, Owens intends to keep chambers in San Diego, where he lives, Munger Tolles spokeswoman Jennifer Mir said Thursday.

But Trott's seat in Boise, Idaho, has been subject to a territorial tussle between the senators from California and Idaho for years. Things intensified in 2004 when Trott went senior and the seat became open and up for grabs. The rift has left it unfilled ever since as the longest-standing judicial vacancy in the U.S.

Idaho's Republican senators, James E. Risch and Michael D. Crapo, claim Trott's seat for their state. "We find the [Owens] nomination unacceptable. The dispute is not resolved. These issues are still ongoing," said Crapo spokesman Lindsay Northern on Friday. He said Crapo had met with Obama administration lawyers earlier to try to break the impasse. "Then they went ahead and put up someone from a different state," Northern said.

Risch said in an emailed statement, "This has been a serious issue over a number of years and this appointment does not resolve that issue. We will have more to say about this in the future."

The Idaho senators will have the chance to blue-slip Owens' nomination, a procedure by which they can submit an unfavorable recommendation to the judiciary committee. And Republican senators, who have been resistent to many of Obama's judicial appointees, also can effectively block Owens' appointment because of Senate rules even though they are in the minority.

The trouble began when President Ronald Reagan placed Trott on the circuit in 1988. At the time Trott was in the No. 3 position at Reagan's Department of Justice. Trott was a former U.S. attorney in Los Angeles and a former chief deputy district attorney for Los Angeles County.

Trott filled the slot vacated when the late Circuit Judge Joseph T. Sneed III of San Francisco took senior status.

Sen. Dianne Feinstein, D.-Cal., has long held that the seat belongs to California.

But Trott confounded expectations when he went from his Justice Department post in Washington, D.C., straight to Boise for his judicial swearing-in and has kept chambers there ever since.

"Feinstein had no reason at all to think I would settle in California," Trott said in a 2012 interview. Feinstein's office did not immediately respond to a question about the Trott seat. In 2011, she said, "A state's share of judgeships within a circuit is generally proportionate to its share of the circuit's population. To allow a judge's choice of where to live to change the allocation of future court of appeals judgeships is irrational, sets a dangerous precedent and disadvantages California."

Feinstein successfully fought off President George Bush's nomination of an Idaho-based candidate, N. Randy Smith, to Trott's seat in 2006. Smith was later confirmed to another Idaho seat.

In 2007, Congress added another 9th Circuit judgeship by transferring an empty slot from the District of Columbia Circuit Court of Appeals. That wasn't enough to persuade Feinstein to back off her insistence that the Trott seat belongs to California.

Glenn Sugameli, a veteran Washington, D.C. attorney who is an authority on judicial selections, said, "This dispute needs to be resolved, and quickly, for the good of our judicial system and for the litigants who come before the 9th Circuit. The idea that a seat changes states when a judge moves would be rejected by any senator from the original home state, and based on history, population or caseload the Trott seat should be based in California."

He noted that Smith occupies Idaho's original seat, fulfilling a statute that guarantees every state at least one circuit judge.

Chief Judge Alex Kozinski on Friday declined to speak about the matter. In 2011, citing the circuit's heavy caseload, he told the Daily Journal, "I have no preference as to whether the appointee comes from California or Idaho; I would just like to see someone confirmed."

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