Bench Memos

NRO’s home for judicial news and analysis.

Ninth Circuit Vacancies


The Ninth Circuit (which covers nine western states as well as Guam and the Northern Mariana Islands) has 28 active judgeships. Currently 24 of these 28 seats are filled, with 16 appointees of Democratic presidents (3 of Carter and an amazing 13 of Clinton) and only 8 of Republican presidents (2 of Reagan, 2 of Bush 41, and 4 of Bush 43). The full list is here.

It would be tempting to write off the Ninth Circuit as a hopeless cause, but in fact I’m reliably informed that a handful of the Clinton appointees are reasonable and that the court is rather evenly divided between hard-core judicial liberals, on the one hand, and judicial conservatives and moderates, on the other. So filling the existing vacancies could do a lot to restore some sanity to the Ninth Circuit.

The President has now made nominations to three of the four vacancies – William Gerry Myers III (first nominated in May 2003), Norman Randy Smith (nominated in December 2005), and Sandra Segal Ikuta (nominated yesterday to the vacancy dating from September 2000, the one that Carolyn Kuhl had previously been nominated to). Word is that Milan Smith, brother of Senator Gordon Smith of Oregon, will soon be nominated to the remaining vacancy.

A note on Myers’s nomination: This nomination has generated controversy, for reasons I’m not familiar with and therefore offer no comment on. (Here’s former senator Alan Simpson’s NRO essay from July 2004 calling for Myers’s confirmation.) For what it’s worth, the Gang of 14’s agreement not to vote to filibuster nominees except in extraordinary circumstances expressly excluded Myers (as well as Sixth Circuit nominee Henry Saad) from its scope. I’m in no position to know whether the votes are there to confirm Myers, but I don’t see what is accomplished by leaving his nomination in limbo. The White House should push for a Senate floor vote or withdraw the nomination.


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