Until it was dramatically revised for appellate nominations in late 2017, the Senate Judiciary Committee’s blue-slip practice gave home-state senators extraordinary influence over appellate picks in their states, even when the president was of the opposing party. But it wasn’t always clear which state was the home state for an appellate seat.
Idaho judge N. Randy Smith learned that lesson the hard way when George W. Bush nominated him in December 2005 to fill the Ninth Circuit seat vacated by Stephen Trott.
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Federal law defines the composition of each federal court of appeals. It tells us, for example, that the Ninth Circuit consists of Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. It also tells us how many authorized judgeships (not counting senior judgeships) each federal court of appeals has. Since 2008, the Ninth Circuit has had 29 seats.
But federal law doesn’t speak to how those judgeships are distributed across the states within a federal court of appeals. It doesn’t tell us how many of the 29 Ninth Circuit seats shall be in Alaska, how many shall be in Arizona, and so on.
Federal law—28 U.S.C. § 44(c)—does say that in each court of appeals other than the Federal Circuit “there shall be at least one circuit judge in regular active service appointed from the residents of each state in that circuit.” What that provision actually means and how it would operate in practice are not entirely clear. But if you assume that it means that each of the nine states in the Ninth Circuit must have at least one of the authorized seats, that still leaves twenty seats unallocated.
How, then, have we come to speak of a “New York seat” on the Second Circuit or of a “California seat” on the Ninth Circuit? The untidy answer is that the Senate has informally used its legislative and confirmation powers to allocate the seats. When Congress creates new seats, senators have an understanding where they will be. As for existing seats, home-state senators have a jealous interest in keeping them where they are, at least until such time as population or caseload disproportions call for a reallocation.
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When Ronald Reagan appointed Stephen Trott to the Ninth Circuit in 1988, Trott set up his chambers in Boise, Idaho. So when he took senior status at the end of 2004, you might think that George W. Bush had an Idaho seat to fill.
But that’s not at all how Senator Dianne Feinstein of California saw it. And she had a good argument, which, she emphasized, had nothing to do with Smith’s merits to serve on the Ninth Circuit.
When the Senate confirmed Trott in 1988, everyone thought that Trott was filling a California seat. He was replacing Joseph Sneed (the father, incidentally, of Carly Fiorina), who had his chambers in San Francisco. And Trott himself, before serving in the Reagan Justice Department in Washington, D.C., had been U.S. Attorney for the Central District of California (with Los Angeles at its core), and before that had worked in the district attorney’s office in Los Angeles County for 15 years.
What’s more, Feinstein argued, California was severely underrepresented on the Ninth Circuit in relation to the caseload it generated. It accounted for 70% of the Ninth Circuit’s appeals but would have fewer than half of its judges if Smith replaced Trott. In sharp contrast, Idaho accounted for only about 1% of the Ninth Circuit’s appeals. Idaho already had one seat, and there was a nomination pending for it. If Idaho had two seats, it would have 7% of the Ninth Circuit’s (then 28) seats.
But, Senator Larry Craig of Idaho countered, although “there are geographic traditions attached to some court seats… this seat’s pedigree is very mixed. In 70 years, it has moved from Oregon to Washington State to California and to Idaho.” So it’s not really a California seat, and it’s proper for President Bush “to maintain the status quo by keeping the seat in Idaho.”
Craig did not have an effective rejoinder to Feinstein’s caseload comparisons.
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One other complicating factor was that the pending nomination to what Feinstein regarded as Idaho’s only proper seat was stuck in limbo. Bush nominated William Myers to replace Judge Thomas Nelson way back in May 2003, but Democrats filibustered Myers’s nomination on the Senate floor, defeating a cloture vote. The Gang of 14 Agreement in May 2005 left him in the lurch, as it expressly made no commitment to support cloture on his nomination. So there was no reason to expect him to be confirmed. But the White House wasn’t giving up on him.
Myers also had no particular ties to Idaho, so the Idaho legal community was not supportive of his nomination.
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The November 2006 elections gave Democrats control of the Senate when it convened in January 2007. In December 2006, Myers asked the White House to withdraw his nomination. So the path forward was clear: Bush could renominate Smith to Nelson’s seat, Feinstein’s opposition would disappear, and Smith would be promptly confirmed.
Yet for reasons that baffle me now as much as they baffled me then, on January 9, 2007 Bush instead renominated Smith to Trott’s seat. When Smith learned from a White House official that was what Bush would do, he questioned that move. But after considering what he had said in that questioning, he called the White House back to apologize and accept whatever the White House thought best.
Smith’s January 9 nomination lasted only a week. Smith received a call from the White House telling him there would be a change. On January 16, Bush withdrew the renomination to the Trott seat and nominated Smith instead to the Nelson seat. One month later, the Senate unanimously confirmed his nomination.
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I can’t resist a colorful diversion on Stephen Trott. As Ninth Circuit judge Ryan Nelson, himself an Idahoan, writes in his history of Ninth Circuit judges from Idaho:
[Trott] is a skilled magician and trainer of carrier pigeons and is an accomplished banjo, mandolin, and guitar player. In college, Judge Trott became a member of the Highwaymen, a folk music band whose Billboard #1 and Top 20 hits included “Michael, Row the Boat Ashore,” and he continued as a member of the group while on the bench; he used vacation time to tour, played guitar at local Boise clubs, and was known to kill time at the airport playing his mandolin. On one occasion, an audience member recommended that he not quit his day job—and then asked if he had one. Judge Trott responded that he was a federal judge for the Ninth Circuit (not believing him, the audience had a good laugh).
The Trott seat would remain vacant until 2014, when Barack Obama would succeed in appointing John Owens to the seat. Owens has his chambers in San Diego.