Votes on 9th Circuit, district court allow all nominees to advance

The U.S. Senate Judiciary Committee on Thursday approved the nomination of 1st District Court of Appeal Justice Gabriel P. Sanchez to the 9th U.S. Circuit Court of Appeals along with four California district court nominees.

The committee split on two other picks by President Joe Biden on party lines, which will allow the nominations of 9th Circuit nominee Holly A. Thomas and Central District of California nominee Hernan D. Vera to move forward. Both are Los Angeles County Superior Court judges

Given the tie votes on Thomas and Vera, Senate Majority Leader Chuck Schumer, D-N.Y., will need to seek a discharge petition so their confirmation bids can be voted on by the full Senate.

The Senate is divided evenly, with 48 Democrats and two independents who caucus with the Democrats pitted against 50 Republicans. Vice President Kamala Harris can cast a vote to break ties.

Harris had to break a tie last month over 9th Circuit nominee Jennifer Sung, who advanced to a confirmation vote after Schumer sought a discharge petition.

The committee divided on Thomas, whom Republican senators criticized for appellate briefs she wrote in support of transgender students.

There was another 11-11 deadlock on Vera, who spent more than a decade as president and CEO of liberal legal group Public Counsel.

The four California district court nominees who were approved by the committee passed by narrow margins, usually with U.S. Sen. Lindsey Graham, R-S.C., casting the lone Republican vote in favor.

Los Angeles County Superior Court Judge Maame Ewusi-Mensah Frimpong was approved by the committee for a Central District of California vacancy, while U.S. Magistrate Judge Linda Lopez and San Diego County Superior Court Judge Jinsook Ohta -- nominated to the Southern District -- both passed.

U.S. Magistrate Judge Jennifer L. Thurston of Bakersfield got a slightly larger margin of 13-9 in getting committee approval for a vacancy in the Eastern District of California.

Senate Republicans criticized Thomas during an October hearing for her work as an appellate attorney with the U.S. Department of Justice, California Department of Fair Employment and Housing, and the New York state solicitor's office as well as her past job with the NAACP.

During his judiciary committee hearing, Vera was not questioned by any Republican senators.

Sen. Alex Padilla, D-California, defended all the nominees during Thursday's hearing.

"Each of the seven nominees before us, colleagues, is a sitting judge on either California state courts or the federal courts as magistrates," he said. "There is nothing in their record that would suggest they would not make excellent Article III judges."

There were few speeches during the hearing, except by Padilla, U.S. Sen. Dianne Feinstein, D-California, and U.S. Sen. Dick Durbin, D-IL, the committee's chairman.

None of Biden's California federal judicial nominees have been confirmed yet, as the Senate races against the clock to pass legislation and spending bills before the end of the year.

Biden has nominated four 9th Circuit judges this year. U.S. District Judge Lucy H. Koh of San Jose was already approved by the judiciary committee.

Thus far, the president's judicial nominees in other states, even those who have drawn heated opposition from the GOP, have been approved by the full Senate because the Senate's 48 Democrats and two independents have stuck together.

While Biden's nominees have moved slowly through committee, he has not nominated candidates to fill 10 current district court vacancies and three future ones.

Joseph W. Cotchett, a partner with Cotchett, Pitre & McCarthy LLP and a Biden supporter who has pushed the president to nominate judges more quickly, said he believes the administration is finally getting the message.

"They're now understanding the urgency of this," Cotchett said in a telephone interview. "You're going to see, in the next 30 to 60 days, a bunch of nominees."

Liberals are concerned that Biden, facing what is a historically difficult political environment for the president's party in the 2022 midterm elections, could easily lose control of the Senate.

If that happens, Biden's nominees would have to be approved by a Senate controlled by the Republicans. The vote against Vera, one attorney involved in the process said, is a sign of how difficult it will be for Biden to confirm district judges, who are usually less of a lightning rod than circuit judges.

It is unknown when or if any 9th Circuit judges appointed by Democratic presidents will resign or take senior status. The court is currently divided 16-13 in favor of Democratic nominees, with no vacancies.

Court watchers say some judges appointed by President Bill Clinton and President Barack Obama may be waiting to see how the confirmation votes go for the Biden nominees.

Some of the older 9th Circuit judges appointed by Democrats include Judge Ronald M. Gould, 75; Judge Andrew D. Hurwitz, 74; and Judge M. Margaret McKeown, 70. Three other Democratic appointees are in their late 60s.

Other 9th Circuit judges past the traditional retirement age include several appointees of President George W. Bush: Judge Milan D. Smith Jr., 79, and Judge Consuelo M. Callahan, 71.