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Judges and Judiciary

Nov. 19, 2019

US judge nominee appears stalled over his affiliation with Federalist Society

Noticeably absent from a long-awaited Senate Judiciary Committee hearing Wednesday for two of President Donald Trump's first California district court nominees was a third candidate nominated on the same day last November, longtime Horvitz & Levy LLP partner Jeremy B. Rosen.

Noticeably absent from a long-awaited Senate Judiciary Committee hearing Wednesday for two of President Donald Trump's first California district court nominees was a third candidate nominated on the same day last November, longtime Horvitz & Levy LLP partner Jeremy B. Rosen.

The hearing for Los Angeles County Superior Court Judge Stanley Blumenfeld and Milbank LLP partner Mark C. Scarsi marked something of a denouement to the partisan standoff that's kept several lower court seats vacant notwithstanding a severe judicial shortage in the nation's busiest district.

But frustrations among many in the Southern California legal community intensified as Rosen's exclusion from last week's hearing suggests lingering objections to his candidacy by California's senators.

Most upsetting, backers say, is the seemingly partisan opposition of Democratic Sens. Dianne Feinstein and Kamala Harris to a candidate supported by colleagues with diverse political leanings, and whose qualifications well befit a federal district judge irrespective of party.

O'Melveny & Myers LLP partner Matthew W. Close, a registered Democrat, said Rosen's political inclinations are secondary to his formidable legal ability.

"He's always been one of smartest and most talented people I've known," said Close, who noted that though he met Rosen in the 1980s it "wasn't until quite some time later I learned he was a Republican."

"There's no doubt in my mind he'd be a conscientious, fair, and impartial judge," Close added.

Ahilan Arulanantham, who with the ACLU of Southern California has secured landmark victories for immigration plaintiffs, said Rosen's intellect and work ethic should assure swift confirmation.

"I don't consider myself partisan but the cases I litigate are normally thought of as progressive, and I have strongly supported his nomination because I think he's very smart and thorough, and very likely to be fair," Arulanantham said. "If I had to pick the first thing to value in a district judge -- even before politics or ideological predispositions -- it's just: Are they going to be smart and thorough? And that's who he is."

Former Justice Ruth Bader Ginsburg clerk Laura W. Brill, of Kendall Brill & Kelly LLP, described Rosen as "honest, hardworking, and very intellectually curious."

"I think he would make a really excellent district court judge," Brill said.

Despite that support from ideologically-diverse colleagues -- evinced in letters from varied groups, including nearly the entire Horvitz & Levy firm -- Feinstein and Harris have thus far withheld "blue slip" approval of the appellate attorney, effectively vetoing Rosen's candidacy, at least for now. Attorneys familiar with the process, like the Judiciary Committee's former chief nominations counsel Michael Davis, now with the Article III Project, say the cause of the holdup is "mostly Harris."

Rosen's long and active affiliation with the Federalist Society, those attorneys surmise, is the likeliest cause of Harris' reluctance. Rosen served as the organization's Los Angeles chapter president for eight years and chaired its advisory board for another 10. The group advocates judicial restraint and originalism; critics say its unstated aim is Republican control of the federal courts. Membership in the organization has been common among Trump appointees.

"For Democratic senators his being a loyal member of the Federalist Society is a red flag," said Manatt, Phelps & Phillips, LLP partner Benjamin G. Shatz. "It allows politicians to say, 'Look, we are blocking this Federalist Society member because we're unhappy with the success the group has had in proposing nominees and getting on the bench."

"The attack is less about individuals and more about organizations," Shatz added.

But any objection so based, Shatz said, overlooks principled, philosophical reasons many members join the group.

"He's a member because presumably he agrees with the jurisprudential approach that group espouses," Shatz said. "That is a matter of thinking about jurisprudence, which is a good thing. We want judges who are serious thinkers."

"I don't see him as a political animal, as some other Federalist Society members are," Shatz added, referencing nominees who have participated more centrally in Republican political efforts. Aside from a few meetings with groups backing former presidential candidates John McCain, Mitt Romney, and Jeb Bush in earlier races, Rosen's Senate questionnaire lists few political campaigns.

"That's not Jeremy. He's an LA guy and an appellate lawyer," Shatz said.

Shatz pointed to other portions of Rosen's resume balancing a perceived rightward lean, mentioning Rosen's work as head of Pepperdine University School of Law's 9th Circuit Appellate Advocacy Clinic, whose students have expanded rights for prisoners and harassed employees, among other civil rights plaintiffs.

"Those are so-called liberal causes," Shatz remarked.

Rosen's backers also say parsing his political leanings neglects a more pressing matter: that California's Central District has been operating without a third of its authorized judgeships for multiple years. Chief District Judge Virginia A. Phillips recently wrote Senators Harris and Feinstein and the White House to describe the "unprecedented" crisis and to emphasize that judges on her court assume a case load twice the national average.

"Practitioners can feel the weight of the backlog because all the judges, even highly efficient ones, slow down when the case load gets heavy," Arulanantham said.

"More and more we see judges not holding oral arguments, including on dispositive motions," added Brill. "That creates a real challenge for the court, for practitioners, and for parties, when the court is that taxed."

Notwithstanding the seeming impasse, some speculate a package deal for the remaining district vacancies may be emerging, suggested by a spate of nominees Trump put forth in the past several weeks.

"My guess is that there is a deal in progress for the California district court spots -- hence the flurry of recent nominations -- and that we'll start seeing movement over the coming months, including with Rosen" said Harsh Vorunganti, of the Voruganti Law Firm PLLC, who closely tracks federal court nominations.

For now Rosen's wait continues, into its 13th month, continuing an uncertain professional existence.

"Being in limbo like that can be a problem. If you are perceived to be about to leave your practice that can make it difficult in terms of handling cases," Shatz said. "I applaud Jeremy for sticking it out. I don't think anybody thought it would be this long."

Requests for comment relating to Rosen's nomination were either declined or unreturned by Senators Feinstein and Harris.


Brian Cardile

Rulings Editor, Podcast Host, 9th U.S. Circuit Court of Appeals reporter

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