Law & the Courts

A Gentleman of the Law

Judge O’Scannlain at the Heritage Foundation in 2013 (image via C-SPAN)
A tribute to Judge Diarmuid F. O’Scannlain

President-elect Trump will soon fill not only an open seat on the Supreme Court but also more than 100 vacancies on the federal appellate and trial courts that shape our law every day. He could do no better than to look to the model of Judge Diarmuid F. O’Scannlain, who this week takes senior status (meaning he will work a reduced caseload) after three decades as a principled conservative voice on the U.S. Court of Appeals for the Ninth Circuit. As two of Judge O’Scannlain’s former law clerks, we speak from personal experience of the extraordinary judicial service he has rendered.

Since his appointment by President Ronald Reagan, Judge O’Scannlain has participated in more than 10,000 cases and written hundreds of published decisions, concurrences, and dissents. In vivid prose, those opinions reflect a careful respect for the limited scope of judicial power in a democracy. To give one example, when the Ninth Circuit found a right to physician-assisted suicide, overturning a law passed by the voters of Washington State, Judge O’Scannlain declared in dissent that “by promulgating a new constitutional right, one unheard of in over two hundred years of American history, six men and two women — endowed with life tenure and cloaked in the robes of this court — have enacted by judicial fiat what the people . . . declined to do at the polls.”

Many of Judge O’Scannlain’s opinions, including his dissents, pointed out when the Ninth Circuit veered from Supreme Court precedent. Indeed, Judge O’Scannlain used one type of dissent, in the en banc process, as an effective restraint on especially freewheeling decision-making. Although appeals are typically resolved by a three-judge panel, any judge may ask a larger, so-called “en banc” panel of eleven judges to rehear certain decisions. So Judge O’Scannlain would “call en banc” decisions whose reasoning was particularly objectionable. A big part of our job as law clerks, in fact, was to help Judge O’Scannlain review newly issued decisions to identify those that might merit en banc review.

More often than not, the Ninth Circuit as a whole would deny Judge O’Scannlain’s call for rehearing en banc. So the judge used dissents from the denial of rehearing en banc as a tool to raise a red flag for the Supreme Court, explaining why the Ninth Circuit had gotten the case wrong and why its error was significant. Time and again, the Supreme Court took notice. Thus, when the Ninth Circuit held that a California court was the right place for Argentinian plaintiffs to sue a German company for acts that occurred in Argentina, Judge O’Scannlain dissented from the denial of rehearing en banc. In an 8–1 decision authored by Justice Ginsburg, the Supreme Court reversed, citing Judge O’Scannlain’s opinion. Similarly, Judge O’Scannlain’s opinion in the physician-assisted-suicide case was also a dissent from the denial of rehearing en banc, and, in Washington v. Glucksberg, the Supreme Court reversed and sided with Judge O’Scannlain.

The judge is justly proud of his record at the High Court, which has agreed with him more often than with any of his colleagues during his active service.

Judge O’Scannlain’s use of the en banc process reflects his broader awareness that federal appellate judges are obligated to follow the Supreme Court’s cases and apply the principles of those cases faithfully. He both anticipated and, through the respect he earned at the High Court, influenced where the Supreme Court would go. For example, Judge O’Scannlain held that the Second Amendment right to keep and bear arms — which, like all of the Bill of Rights, restrains only the federal government — applies to the states through the 14th Amendment. The Ninth Circuit voted to rehear the case en banc, vacating his decision. But a year later, in McDonald v. City of Chicago, the Supreme Court vindicated Judge O’Scannlain’s position.

The judge is justly proud of his record at the High Court — which has agreed with him more often than with any of his colleagues during his active service — but that pride is a recognition of the restrained role appellate judges must play in the judicial system as a whole. In an appellate system of twelve regional circuit courts covering differing parts of a large and diverse country, Supreme Court precedent is a centripetal force, but only if the circuit courts heed it. Much of Judge O’Scannlain’s career was devoted to ensuring that the court on which he sat did just that.

Judge O’Scannlain’s many scholarly opinions do not exhaust his legacy; it also includes the guidance he gave to three decades of law clerks. He taught us grace and humility. He never spoke badly about another judge, including — perhaps especially — his ideological opposites. He treated his clerks and administrative assistants with kindness, helping many of them through difficult times in their lives. He made it a point to attend his clerks’ weddings, and helped us advance our careers years after we had left chambers. And through the example of his character he reminded us of the need to give a respectful audience to all views, even those with which we deeply disagreed. He represents another era, one more civilized than the present.

#related#We can give no clearer testament to Judge O’Scannlain’s character and dedication to his law clerks than to recall his announcement that he was taking senior status. Earlier this year, the judge’s law clerks gathered in Portland, Ore. (where his chambers are located), for a reunion. After dinner, Judge O’Scannlain read to a crowd of clerks and guests a letter he had written to President Obama, but not yet sent, formally notifying the president of his decision. He explained why he believed the time had come, naming the colleagues and mentors who had passed away over the years and expressing his desire to spend more time with his beloved wife, Maura, their eight children, and their 19 grandchildren. The room was hushed. The rapt, silent attention we paid reflected our deep respect.

The conversations that followed Judge O’Scannlain’s announcement focused not only on the 30 years of service that we clerks had collectively witnessed but also on the next 30 years. As a senior judge, Judge O’Scannlain will hear a smaller number of cases, will no longer be able to assign the majority opinion, and will not be able to participate in en banc panels. Yet we have no doubt that the judge will remain a forceful presence on the federal bench through his opinions, speeches, and writings.

To one of the most influential jurists of his generation, from two clerks whose careers he launched and whose lives he enriched, we say congratulations and thank you.

— Ethan Davis is a partner at King & Spalding LLP in San Francisco. Daniel Sullivan is a partner at Holwell, Shuster, & Goldberg LLP in New York City. 

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