Obama makes potentially historic pick for 9th Circuit

September 23, 2011
Obama makes potentially historic pick for 9th Circuit
By Michael Doyle | McClatchy Newspapers

WASHINGTON — Senate Republicans balked the last time President Barack Obama nominated an Asian American from California to a prominent bench seat, which some conservatives considered a stepping stone to the Supreme Court.

Now, with the nomination of Los Angeles-based U.S. District Judge Jacqueline Hong-Ngoc Nguyen to the 9th Circuit Court of Appeals, Obama and GOP lawmakers will get another chance to either fight or reconcile over a potentially historic appointment.

"I look forward to a speedy confirmation by the Senate," Democratic Sen. Dianne Feinstein said.

In the current political climate, this might be wistful thinking.

Obama's prior choice for the 9th Circuit, then-law professor Goodwin Liu, saw his nomination languish under a GOP wet blanket for some 15 months before he withdrew last May. Ninety-two federal judiciary vacancies remain, including 17 on appellate courts.

Appellate court nominees typically draw more scrutiny than trial-level judges, because their opinions can become binding law for a multi-state region. The 9th Circuit spans nine Western states: Idaho, Washington, California, Alaska, Montana, Arizona, Nevada, Hawaii and Oregon.

This means Nguyen can expect to receive far more than the half-a-dozen or so perfunctory questions she received during her brief 2009 district court nomination hearing. No date has been set for the hearing.

"Judge Nguyen has been a trailblazer," Obama said in a statement announcing her nomination late Thursday, adding that he is "confident she will serve the American people with fairness and integrity."

The American Bar Association on Friday advised the Senate Judiciary Committee that its committee unanimously judged Nguyen to be "qualified." This falls short of "well qualified" but is above "not qualified."

As a district court nominee in 2009, Nguyen was judged "well qualified" by the ABA. Appellate court nominees, more than trial-level nominees, get judged heavily in areas such as legal scholarship and writing ability.

On the other hand — as past judicial nominees such as Supreme Court nominee Robert Bork have found to their regret — too much legal scholarship can cause problems if the academic writings prove too provocative.

Born in Vietnam in 1965, Nguyen would be the first Vietnamese American on a federal appellate court if she wins Senate confirmation. For those looking two moves ahead on Capitol Hill, that potentially raises the stakes, including the possibility that she's being given a tryout for the really big league.

Presidents periodically appoint appellate court nominees for whom they have longer-term ambitions. Opposition party senators, in turn, periodically try to head these nominations off at the pass. Ethnic politics sometimes plays a role in this tussling.

"In addition to her qualifications, the White House and California's Democratic senators surely find it appealing to put the first Vietnamese-American on a federal appellate court," conservative court watcher Ed Whelan said Friday. "I'd be surprised if the White House is consciously grooming her for a Supreme Court nomination, but she may end up as a top-tier candidate anyway."

Whelan, who is president of the Ethics and Public Policy Center in Washington, acknowledged that Nguyen has "a remarkable life story." And, as up-from-poverty Supreme Court justices Clarence Thomas and Sonia Sotomayor can attest, such remarkable life stories can help win Senate votes.

Nguyen came to California with her family in 1975 from Dalat, South Vietnam. They lived initially at Camp Pendleton before moving to Los Angeles, where her parents owned doughnut shops. Nguyen slung doughnuts as she went on to graduate from Occidental College and the University of California Los Angeles School of Law.

"Judge Nguyen's personal story is one that to me... really shows how fortunate we all are to live in the United States," Feinstein told the Senate Judiciary Committee at Nguyen's first confirmation hearing, in 2009.

Judicial nominees typically don't speak with the media during their nomination process.

As it happens, Nguyen's life narrative partly parallels that of Sotomayor, starting with their very modest upbringings.

Nguyen served seven years as a federal prosecutor, giving her the law-and-order credentials that can mollify some conservatives. Sotomayor, the high court's first Hispanic member, likewise prosecuted criminals for five years.

Nguyen worked four years in private practice, giving her business experience with a Los Angeles firm. Sotomayor worked five years in private practice in New York City. Nguyen has served some nine years as a trial judge, at both superior court and federal level. Sotomayor worked five years as a trial judge.

"The process of judging does not change merely by my ethnicity," Nguyen said at her 2009 hearing. "The law remains the same."

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