Bid by Oregon Democratic senators to help pick a 9th Circuit judge viewed as unlikely

Oregon’s Democratic senators have asked the White House to consider four candidates as nominees for the last existing vacancy on the 9th U.S. Circuit Court of Appeals in an apparent attempt to invite discussion and compromise around an eventual pick.

In a letter Wednesday to White House Counsel Pat Cipollone, Senators Ron Wyden and Jeffrey A. Merkley relayed a shortlist of qualified candidates named by a bipartisan selection committee the senators convened.

That list includes three current judges — Erin C. Lagesen and James C. Egan from the Oregon Court of Appeals and Danielle Hunsaker, a trial court judge — and commercial appellate attorney Bruce L. Campbell, a partner at Miller Nash Graham & Dunn LLP in Portland.

Now-Senior Circuit Judge Diarmuid O’Scannlain vacated the open judgeship shortly after Donald Trump’s election in 2016. Trump has since successfully appointed seven circuit judges — all in the past 13 months — but O’Scannlain’s former post has lingered unoccupied.

Federal prosecutor Ryan W. Bounds was nominated to fill it in 2017, but controversial college writings scuttled his confirmation just as it was headed for a full Senate vote last summer.

Wyden and Merkley tried to block Bounds’ nomination by invoking a Senate norm that historically has granted senators a de facto veto over judicial appointments within their states. The process proceeded notwithstanding their objections, signaling the longstanding tradition was effectively dead.

Since then, the president has pressed circuit court picks without courting the approval of home state senators. Three appointments to California’s bench seats — for Daniel P. Collins, Kenneth K. Lee and Daniel A. Bress — came despite disapproval expressed by the state’s senators, Dianne Feinstein and Kamala Harris.

That emerging custom casts doubt on the Oregon senators’ chances of engaging the Trump administration in any sort of dialogue over the Portland seat’s eventual occupant. As does a Republican Senate majority that grew by two members after 2018’s midterm election.

“As a fan of bipartisan consensus, one can always hope,” said Ben Feuer, who chairs the California Appellate Law Group and follows the 9th Circuit closely. “But with the end of the blue slip process and the judicial filibuster, I’m not sure the White House has any incentive to compromise.”

Arthur Hellman, a University of Pittsburgh School of Law professor who studies the 9th Circuit, suggested Bounds’ botched nomination might incline the White House to accept a consensus candidate but also recognized political considerations may stymie negotiation.

“Certainly, the White House doesn’t want to be embarrassed again for this seat, and they would like to get somebody through,” Hellman said. “But they would also like to move the 9th Circuit in a more conservative direction.”

Credentials of the four suggested nominees are, unsurprisingly, impressive. But aspects of their resumes may caution Trump’s judicial selection team.

Lagesen and Hunsaker were appointed to their current posts by Democratic governors; Campbell is a member of the ACLU of Oregon’s Lawyer’s Committee; Egan, who serves as the state Court of Appeals’ Chief Judge, lists on his LinkedIn profile a former membership with the Oregon State Bar’s Affirmative Action Committee.

While the open Portland judgeship is the circuit’s only extant vacancy, two more are scheduled. Jay S. Bybee will assume senior status in December and Carlos T. Bea has announced he’ll yield his San Francisco-based seat once a successor has been appointed.

Inquiries to officials for the senators and at the White House were not returned by press time.