Judge Diamuid O’Scannlain, the conservative pillar of the sprawling, solidly liberal 9th U.S. Circuit Court of Appeals, will assume senior status at the end of the year.
A federal judge who assumes senior status abdicates regular duties, but may still participate in a handful of cases as needed.
O’Scannlain’s departure from the bench is important in several respects. In the first place, the 9th Circuit will be deprived of its leading conservative voice. His departure effectively leaves four vacancies on the nation’s largest appeals court (there are currently two empty seats on the 9th Circuit, and the nomination of District Judge Lucy Koh to fill the third empty seat is unlikely to be taken up by the U.S. Senate.) With O’Scannlain’s retirement leaving a fourth opening, the next president will be able to meaningfully affect the direction of the 9th Circuit.
This is especially important in that the 9th Circuit is tracking closer to the center in recent years. Though the court is still stacked with liberal jurists (two thirds of the court’s 29 judges were appointed by Democratic presidents), most of the court’s Carter-appointees have retired in recent years, depriving the bench of its far-left flank. Stripping the court’s right-wing of its center of gravity could arrest this process — or hasten it. (RELATED: It’s Now A Federal Crime To Visit Someone’s Website If They Tell You Not To)
Secondly, as Above the Law’s David Lat points out, O’Scannlain was a powerful advocate for splitting the 9th Circuit into two new appeals courts. 9 states sit within the Court’s jurisdiction, representing a significant swath of the population. At nearly 30 judges, it is by far the largest circuit court in the country. Justices Clarence Thomas and Anthony Kennedy endorsed his view in 2007, telling a Congressional panel that splitting the 9th was the consensus position on the Supreme Court.
Finally, he was a leading “feeder judge.” A feeder judge is a judge whose law clerks are often subsequently selected to clerk for a U.S. Supreme Court Justice. He consistently produced clerks (about 20) for the high court’s right wing during three decades on the federal bench.
Known for his cordiality, O’Scannlain occasionally turned a sharp phrase, such as this footnote from a recent dissent:
‘Circuit split’ perhaps does not fully describe the resulting state of affairs. It is more like we have spun out of the known legal universe and are now orbiting alone in some cold, dark corner of a far-off galaxy, where no one can hear the scream ‘separation of powers.’
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