Parade of US judges to senior status continues

Four California federal judges have joined U.S. District Judge William Alsup of San Francisco in taking senior status.

The exodus of district judges is not surprising, and the list of vacancies is expected to grow in the coming weeks.

While many legal observers expect many judges appointed by Democrats to leave their seats now that Democrats control the White House and the U.S. Senate, two of the most recent California judges taking senior status were appointed by President George W. Bush, a Republican.

U.S. District Judge Jeffrey S. White of the Northern District took senior status effective Monday, while U.S. District Judge Larry A. Burns of the Southern District of California took senior status Jan. 22.

Northern District Chief Judge Phyllis J. Hamilton, an appointee of President Bill Clinton, also took senior status Monday, while U.S. District Judge Anthony J. Battaglia, an appointee of President Barack Obama, will take senior status March 31.

Several 9th U.S. Circuit Court of Appeals judges are also expected to take senior status soon, allowing President Joe Biden to choose their replacements.

A host of new judicial vacancies have been anticipated since Biden won the presidential election in November. That expectation increased after Democrats took narrow control of the U.S. Senate -- at least through 2022 -- with two runoff victories in Georgia.

Aside from political considerations, attorneys and judges are eager to fill vacant positions so the bench is not short-handed.

"This is a high priority," said Wylie A. Aitken, a Santa Ana-based partner with Aitken Aitken & Cohn, who is chair of Sen. Dianne Feinstein's Central District advisory committee.

Sen. Alex Padilla, who was appointed by Gov. Gavin Newsom to fill the remainder of Vice President Kamala Harris' term in the Senate, is expected to appoint his advisory committees within the next few weeks.

There are six existing vacancies on the Central District, for example, but attorneys familiar with the process expect that number to double within the next few months.

In the Eastern District, there are two vacancies out of six district court positions. U.S. District Judge Dale A. Drozd is the only Article III judge in Fresno. Attorneys and judges have been told that both new judges, once chosen and confirmed, will be based in Fresno while Drozd moves back to Sacramento.

The decisions by Hamilton, White and Alsup to take senior status opens up three vacancies in the Northern District, while the moves by Burns and Battaglia increases the number of Southern District vacancies to six as of the end of March.

One leading candidate for one of the Eastern District vacancies is Chief U.S. Magistrate Judge Jennifer L. Thurston, a former litigator who has served on the bench since 2009 and works in Bakersfield.

Biden's White House counsel, Dana Remus, sent instructions to Democratic senators emphasizing the importance of nominating judges who have different backgrounds, such as public defenders and attorneys who do legal aid work, in addition to a focus on racial and gender diversity.

"We have received a record number of applications and the process is now in full swing," Aitken said.

While the 9th U.S. Circuit Court of Appeals has no vacancies, that is expected to change soon. Several long-serving judges who were appointed in the 1990s by President Bill Clinton are expected to take senior status, including at least one or two from California.

Several attorneys involved in the process say U.S. District Judge Lucy H. Koh of San Jose, who was nominated to the 9th Circuit by President Barack Obama but never got a vote in the Republican-controlled Senate, is a strong favorite for a nomination if she wants it.

One lawyer who asked not to be named called Koh "a shoo-in" for a nomination.

The decisions by Hamilton and Burns mean new leadership is taking over in the Northern and Southern districts. Chief Judge Dana M. Sabraw became presiding judge in the Southern District on Jan. 22, while Richard Seeborg is becoming presiding judge of the Northern District on Monday.

"Being chief judge for the past six years was the capstone of my tenure and I am pleased to pass the gavel to my colleague and friend, Richard Seeborg, who will succeed me," Hamilton wrote in a statement Monday.

Before she became chief judge, Hamilton handled major antitrust litigation by electronics manufacturers against makers of dynamic random access memory.

Hamilton was a Northern District magistrate judge from 1991 to 2000 before she was appointed as an Article III judge.

White is perhaps best known for his 2012 ruling striking down a portion of the Defense of Marriage Act as unconstitutional. The U.S. Supreme Court agreed with him the following year in a decision that marked a triumph for same-sex marriages. United States v. Windsor, 570 U.S. 744 (2013).

Citing that decision and others about immigration and metadata, White said in a phone interview, "Those are the ones I think are most interesting."

White said he would continue to take a "substantial caseload to assist the court" during the next few months.

Burns said his reason for retirement was not political, adding he planned to retire before the election. Burns has been a judge for 23 years -- six years as a magistrate, and 17 as district judge for the Southern District.

"I know someone usually waits until their party is back in power, but I honestly didn't give that any thought at all," Burns said.

He said the factor that influenced his retirement was his position on the national committee that acts as a clearing house when a federal court somewhere in the nation may need a judge due to backlogs or recusals.

He said some of his proudest accomplishments as chief judge was keeping the Southern District courthouse open during the pandemic, and helping his colleagues churn through more than a dozen jury trials last year.

Burns also touted his establishment of a panel of attorneys based in Imperial County's El Centro courthouse to handle criminal cases, which saved San Diego-based lawyers from wasting a whole day traveling for two hours for a five-minute appearance.

Battaglia said in an interview that retirement had been on his mind for some time, as he was appointed district judge at 62. Battaglia said he felt it was the right time as it will free up some time for his favorite hobby, surfing.

"I can take time off without feeling like I'm putting my colleagues in the lurch, but I hope we have a new person in the spot to help steer the ship," Battaglia said.

Battaglia has been on the Southern District bench for 28 years -- 18 as a magistrate judge, and 10 as district judge. He was 44 when he was appointed magistrate judge in 1993.

Asked about any case he was most proud of overseeing, Battaglia pointed to a decision that allowed government officials to remove asylum-seekers without judicial review.

Battaglia dismissed Vijayakumar Thusaissigiam's habeas corpus petition, finding that 8 U.S.C. 1252 (e) didn't authorize jurisdiction over his claims. Battaglia was reversed by the 9th U.S. Circuit Court of Appeals.

But in June 2020, the U.S. Supreme Court reversed the 9th Circuit, finding the limitations on habeas corpus review in a 1996 federal law are constitutional.