By Patrick Gregory, Bloomberg BNA
Judge Paul J. Watford, who was one of only two black judges at the U.S. Court of Appeals for the Ninth Circuit when he was confirmed, might get another chance at being nominated to the U.S. Supreme Court.
Watford reportedly made President Barack Obama’s shortlist of three potential nominees following Justice Antonin Scalia’s death Feb. 13, but Obama chose D.C. Circuit Chief Judge Merrick Garland instead.
Watford is now being mentioned as a potential Supreme Court nominee of Democratic presidential candidate Hillary Clinton by “well-connected groups in Washington,” according to a recent report by The Hill.
Past praise from prominent conservatives, along with his broad experience as an attorney, could weigh in favor of Watford’s confirmation if nominated.
Further, two recent, high-profile Supreme Court decisions validated opinions by Watford.
However, Watford’s controversial advocacy in immigration and death penalty cases could reemerge as a confirmation obstacle.
At Watford’s Ninth Circuit confirmation in 2012, Sen. Dianne Feinstein (D-Calif.) said Watford had “broad support across the political spectrum.”
Similarly, Sen. Patrick J. Leahy (D-Vt.) said the nominee — then a partner at Munger, Tolles & Olson LLP, Los Angeles — was “far from an ideological, partisan selection.”
“Conservative law professor Orin Kerr of George Washington University Law,” in Washington, described Watford as “extremely bright, a moderate, and very much a lawyer’s lawyer,” Leahy said.
Leahy also quoted praise from “law professor Eugene Volokh of UCLA Law and creator of the conservative Volokh Conspiracy blog.”
Volokh wrote that Watford was “the sort of moderate Democratic nominee that moderates and conservatives, as well as liberals, should solidly support.”
Henry Weissmann, a chapter president of the conservative Federalist Society, wrote that he had “never seen any hint of politics in Mr. Watford’s lawyering.”
However, support for Watford wasn’t universal—34 Republicans voted against his confirmation, while nine voted to confirm.
Like Watford’s supporters, his two clerkships following law school also spanned the political spectrum.
He first clerked for Judge Alex Kozinski, who was appointed by President Ronald Reagan and is now Watford’s colleague at the Ninth Circuit.
In a 2012 letter to the Senate, a long list of former Kozinksi clerks wrote to “echo the strong support” that Kozinski had “given to Mr. Watford.”
Watford’s second clerkship was for Justice Ruth Bader Ginsburg on the Supreme Court.
Leahy pointed to a similar letter from 32 Supreme Court clerks who also served with Watford.
“Those of us who clerked with Paul for Justice Ginsburg know that she praised his work as exemplary and that she is a tough judge of legal talent,” they said.
In Tune With SCOTUS?
Two recent Supreme Court decisions — written by Justices Clarence Thomas and Sonia Sotomayor, commonly considered ideological opposites — agreed with opinions by Watford.
The Ninth Circuit considered whether a town sign ordinance limiting a church’s temporary signs providing directions to its services were unconstitutional in Reed v. Town of Gilbert, 707 F.3d 1057 (9th Cir.2013) (81 U.S.L.W. 1196, 2/19/13).
The appeals court found that the ordinance was content neutral and therefore constitutional.
But Watford dissented, saying that the ordinance violated the First and 14th amendments “by drawing content-based distinctions among different categories of non-commercial speech.”
“The most glaring illustration is the ordinance’s favorable treatment of ‘political’ and ‘ideological’ signs relative to the treatment accorded the non-commercial signs” the church sought to display, he said.
The Supreme Court agreed in an opinion written by Thomas, in Reed v. Town of Gilbert, 83 U.S.L.W. 4444, 2015 BL 193522 (U.S. June 18, 2015) (83 U.S.L.W. 1950, 6/23/15).
The ordinance was “content based on its face,” the court said.
The regulation couldn’t survive the strict scrutiny that applies to such regulations, the court found.
Hotel Registry Searches
The Supreme Court also agreed with Watford in a case involving warrantless police searches of hotel guest registries.
Los Angeles motel owners challenged a city code provision allowing such searches, in Patel v. City of Los Angeles, 738 F.3d 1058 (9th Cir.2013) (en banc) (82 U.S.L.W. 964, 1/7/14).
Writing for the en banc Ninth Circuit, Watford said the provision was “facially invalid under the Fourth Amendment,” which protects against unreasonable searches and seizures.
Non-consensual inspections of hotel registries “involve both a physical intrusion upon the hotel’s private papers and an invasion of the hotel’s protected privacy interest in those papers,” the opinion said.
The Supreme Court affirmed in a decision written by Sotomayor, in City of Los Angeles v. Patel, 83 U.S.L.W. 4520, 2015 BL 197452 (U.S. June 22, 2015) (83 U.S.L.W. 1943, 6/23/15).
The court said it agreed with the Ninth Circuit that the provision was “facially invalid insofar as it fails to provide any opportunity for precompliance review” before requiring hotels to provide their registries to police.
Current Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa) said in 2012 that his opposition to Watford’s confirmation was “based on substantive concerns that I have regarding Mr. Watford’s views on both immigration and the death penalty.”
Such concerns haven’t disappeared among Watford’s critics.
The conservative National Review Online recently criticized him as being a “standard ACLU liberal” partly based on those two issues.
“He is an anti-law enforcement extremist whose record on issues like illegal immigration and the death penalty makes it clear that he would push the Supreme Court to the far left,” the NRO blog post said.
Grassley cited Watford’s work as an attorney partnering with the American Civil Liberties Union and National Immigration Law Center, in opposition to “Arizona’s 2010 immigration bill” known as S.B. 1070.
Watford worked as “co-counsel on an amicus brief” opposing the bill in United States v. Arizona, 641 F.3d 339 (9th Cir.2011).
In Arizona, the Ninth Circuit affirmed a district court’s preliminary injunction order against certain provisions of the bill.
One such provision, “Section 3,” made it a misdemeanor for an immigrant to not carry immigration registration documents.
The amicus brief argued that Arizona failed “to account for the complexities and realities of Federal immigration law.”
Those lacking such documents were at risk of “constant and repeated criminal prosecution,” the brief argued.
Grassley said that Watford went beyond arguing on his client’s behalf, having “adopted those legal theories as his very own.”
The senator cited a 2010 speech in which Watford said the bill was unconstitutional.
Grassley criticized Watford for declining “to answer many of my questions” on the matter, despite having spoken publicly about it.
The Supreme Court found that Section 3 was preempted by federal regulations less than a month after Watford’s confirmation, partially affirming and partially reversing the Ninth Circuit in Arizona v. United States, 80 U.S.L.W. 4539, 2012 BL 157302 (U.S. June 25, 2012) (80 U.S.L.W. 1792, 6/26/12).
Watford’s assistance with an amicus brief challenging Kentucky’s lethal injection protocol also received scrutiny.
The Supreme Court upheld the protocol in that case, Baze v. Rees, 553 U.S. 35 (2008).
It “is very curious to me” that Watford “would go out of his way to provide his services to a case that would undermine the death penalty,” Grassley said.
Grassley also questioned Watford’s “concession that he would give consideration to foreign or international law in interpreting the meaning of the Cruel and Unusual Punishment clause.”
It “makes me wonder how he would approach this issue,” Grassley said.
As a judge, Watford showed his willingness to apply the death penalty recently in Washington v. Ryan, No. 05-99009, 2016 BL 263109 (9th Cir. Aug. 15, 2016) (en banc) (85 U.S.L.W. 240, 8/18/16).
In Ryan, death row inmate Theodore Washington filed a notice of appeal one day after the federal filing deadline.
The full Ninth Circuit ordered the district court to reenter judgment “so that his appeal could be deemed timely.”
But Watford dissented.
He took “no pleasure in voting to dismiss” the inmate’s appeal.
“Dismissing the appeal because his lawyer filed the notice one day late strikes me as a grave injustice.”
But dismissal was required under the high court’s decision in Bowles v. Russell, 551 U.S. 205 (2007), he said.
Bowles found that the deadline for filing civil appeals was “jurisdictional and thus not subject to equitable exceptions.”
However, Watford said “Bowles stands on shaky ground and merits reconsideration.”
That’s because with “one exception, the Court’s post-Bowles cases have routinely held statutory filing deadlines to be non-jurisdictional.”
Nonetheless, Bowles controlled and required dismissal of the appeal “as untimely, even at the cost of ending Washington’s bid to obtain habeas relief from his death sentence on grounds similar to those that spared his co-defendant’s life.”
Watford—former co-chair of the American Bar Association’s Appellate Practice Committee — had notably broad experience as an attorney.
As a federal prosecutor, Watford handled cases involving drug offenses, immigration, fraud and gun trafficking.
Further, he received praise from former clients including Google, Mattel and Verizon for his work in private practice.
A 2012 letter from those clients said Watford “demonstrated an understanding of the legal and economic challenges faced” in “private industry as well as in the public sector.”
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