Some Possible Nominee Names For The Ninth Circuit

Let's hope the Senate handles Trump's judicial nominees in a fair -- and fast -- manner.

It’s no secret that President Donald Trump is not a fan of the U.S. Court of Appeals for the Ninth Circuit, the generally liberal (but evolving) federal appeals court that covers nine western states. For example:

Whether he likes it or not, President Trump must deal with the judicial reality of the Ninth Circuit (as our columnist Kayleigh McEnany recently argued). And in my personal opinion (and the opinion of Judge Alex Kozinski), President Trump’s attacks on the judiciary are counterproductive (even if some judges shrug them off).

Instead of tweeting angrily about the Ninth Circuit, President Trump should reshape it — which he’s now in the process of doing. Writing in The Recorder, Ross Todd identifies some potential contenders for the four open seats on the court. (Disclosure: I know or am friends with several of the individuals mentioned below, including Michael Purpura, Ryan Bounds, Jeremy Rosen, and Kory Langhofer — and I think very highly of them.)

Michael Purpura, a partner at Carlsmith Ball in Honolulu. Purpura was a federal prosecutor in Manhattan and Honolulu prior to stints at the Department of Justice and the White House Counsel’s Office under President George W. Bush. A West Point grad, Purpura submitted an amicus brief on behalf of 36 officers and civilian military leaders in Fisher v. University of Texas asking the U.S. Supreme Court to uphold the constitutionality of the school’s admissions policy that included race as a factor. Purpura didn’t respond to phone and email messages.

Mike Purpura, a graduate of Columbia Law as well as West Point, has trial and appellate experience, civil and criminal experience, and government and private-sector experience (including a stint at Davis Polk). He would be a great addition to the Ninth Circuit (and note that, although he served in the George W. Bush administration, he has also worked on “liberal” causes — such as the aforementioned defense of UT’s affirmative action policy).

Ryan Bounds, an assistant U.S. attorney in Portland, Oregon, and former clerk for Ninth Circuit Judge Diarmuid O’Scannlain, whom he would potentially replace. Bounds, who was reported to be among the top candidates for the U.S. attorney spot in Portland, previously served at the White House as special assistant to President George W. Bush for justice and immigration policy and at the DOJ as chief of staff and deputy assistant attorney general for the Office of Legal Policy. Bounds didn’t respond to an email message.

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Ryan Bounds, a graduate of Stanford for college and Yale for law school, would be a superb pick to fill the (large) shoes of his former boss, Judge O’Scannlain, who took senior status earlier this year. Like Mike Purpura, Ryan Bounds also has a glittering and well-rounded résumé: trial and appellate work, civil and criminal work, and government and private practice (at Stoel Rives, one of Portland’s top firms). He also has a great combination of D.C. ties, from his White House and DOJ days, and roots in Oregon, where he has spent most of his legal career and where his family has lived for generations. (Disclosure: Bounds and I were law school classmates and co-clerks for Judge O’Scannlain.)

Jeremy Rosen, a partner at Horvitz & Levy who specializes in civil appeals. Rosen is the former president of the Federalist Society’s Los Angeles chapter, and he clerked at the Ninth Circuit for Judge Ferdinand Fernandez. Rosen was among a group of notable conservative lawyers who backed the nomination of Judge Paul Watford to the Ninth Circuit in 2011. Rosen declined to comment.

I previously identified Jeremy Rosen as a Ninth Circuit contender, and I continue to believe he would be an excellent selection for the court. As another former Ninth Circuit clerk (he clerked there the same year as Ryan Bounds and I) and as a top appellate lawyer, Rosen has more knowledge of and experience before that court than pretty much anyone out there. He is a graduate of Cornell and Duke Law School. (And, like Mike Purpura, Rosen has also worked on “liberal” matters; for example, as director of Pepperdine Law’s appellate advocacy clinic, he has advocated for prisoner rights.)

Boris Feldman, a partner at Wilson Sonsini Goodrich & Rosati. The star securities litigator has long been rumored to be interested in a federal judicial appointment. He’s previously served as a lawyer representative to the Ninth Circuit. Feldman declined to comment.

Boris Feldman, a Yale College and Yale Law School graduate, was considered for the Ninth Circuit back in the George W. Bush administration. He has represented some of Silicon Valley’s biggest names over his thirty years in practice — which is perhaps the only strike against him. The Trump administration is focusing on young nominees — as Federalist Society leader and judicial power broker Leonard Leo recently said, “young is good” — and as a 1980 college graduate, Feldman is presumably around 60. But there is no disputing that he boasts ample qualifications for the federal judiciary.

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(Age is also perhaps why Judge Michael Mosman of Oregon, who’s 60, isn’t getting more buzz for the Oregon seat previously held by Judge O’Scannlain. As a former SCOTUS clerk and U.S. attorney and the current chief judge of the District of Oregon, Judge Mosman would be a formidable contender if he were a decade younger.)

Finally, here’s what Ross Todd reports about the Arizona opening:

Among those said to be under consideration for the Arizona seat are Dominic Lanza, an assistant U.S. attorney in Phoenix who was formerly an associate at Gibson, Dunn & Crutcher; U.S. Magistrate Judge Bridget Bade; Justice Ann Scott Timmer of the Arizona Supreme Court, and Kory Langhofer, who was the general counsel for Carly Fiorina’s 2016 presidential campaign and Trump’s general election campaign lawyer in Arizona and Nevada.

The James R. Browning U.S. Court of Appeals Building, the Ninth Circuit's headquarters in San Francisco.

The James R. Browning U.S. Court of Appeals Building, the Ninth Circuit’s headquarters in San Francisco.

Of these names, the one I’ve heard from my sources is Kory Langhofer, a rising star in Arizona legal circles who’s also extremely well connected in government and politics. His main challenge may be the opposite of Boris Feldman’s and Michael Mosman’s: his youth. He graduated from Yale Law School a little more than a decade ago, in 2006 (and he graduated from college, at the University of Illinois at Urbana-Champaign, in 2003). But let’s not forget that some of the most respected and influential judges in the history of the federal judiciary were nominated before age 40, including Alex Kozinski (34), J. Michael Luttig (36), Frank Easterbrook (36), Neil Gorsuch (38), J. Harvie Wilkinson (39), and Samuel Alito (39). (Note: that’s age at time of nomination, not appointment, to their first federal appellate court.)

The possible nominees mentioned above are all eminently qualified for the Ninth Circuit. As I’ve written before, I very much hope that the Trump administration’s judicial nominations receive full, fair, and fast consideration from the Senate.

More specifically, I hope that Democratic senators do not abuse “blue slips” to stop or stymie the nominations of qualified individuals just because the nominee happens to be more conservative than the senator. I consider myself a political moderate, not registered with either party, and I thought that both Chief Judge Merrick Garland and then-Judge Neil Gorsuch were treated unfairly (in terms of being denied a vote and being filibustered, respectively). From where I sit, both parties have unclean hands when it comes to judicial nominations. So at this juncture, there’s no point in allocating blame; let’s just bury the hatchet on judicial nominations and fill the bench with qualified individuals, without regard to ideology. With around 120 vacancies in the district and circuit courts, almost half of them judicial emergencies, there’s no time to delay.

P.S. According to Josh Dawsey and Josh Gerstein of Politico, the Trump administration plans to announce at least 10 judicial nominees in the next two weeks. So next week, I plan to write another story on prospective nominees, not just in the Ninth Circuit but from around the country (like my previous story on judicial nominations). Have information to share? Please email us, subject line “Judicial Nominations,” or text us (646-820-8477), including the words “Judicial Nominations” somewhere in your text. Thanks!

UPDATE (5/1/2017, 11:00 p.m.): Here’s the follow-up story that takes a more comprehensive look: Circuit Court Nominees In The Trump Administration: A Nationwide Round-Up.

As Trump Rails at Ninth Circuit, White House Eyes Vacancies [The Recorder]
Trump administration moving to replace fired U.S. attorneys [Politico]

Earlier: Judge Kozinski’s Advice To President Trump, Courtesy Of ’60 Minutes’
Who Will President Trump Nominate To The Circuit And District Courts?
Lower-Court Judicial Nominations By The Trump Administration
Friday Night Fights — At The Ninth Circuit
How Trump Should Handle Liberal Judges
Is The ‘Nutty Ninth’ Circuit Coming To Its Senses?


DBL square headshotDavid Lat is the founder and managing editor of Above the Law and the author of Supreme Ambitions: A Novel. He previously worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz; and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@abovethelaw.com.