Confirm Anthony Johnstone to the Ninth Circuit 

The U.S. Senate must expeditiously confirm professor Anthony Johnstone to the 9th U.S. Circuit Court of Appeals that resolves the greatest number of appeals from administrative determinations, many of which involve the environment, natural resources and public lands. The court is also the largest appellate court in terms of geography, cases and judges. Some observers consider this court to be the most controversial because of a perceived liberal tilt, and a few even dubbed it the “Ninth Circus.” However, former President Trump confirmed ten judges to the court, which is now more even ideologically, because Democratic presidents have appointed 16 members and Republican presidents have confirmed 13.

Johnstone, whom President Biden nominated last September is highly experienced. For three years, he was a very capable litigator at Cravath, Swaine, and Moore. From 2008 until 2011, Johnstone was Montana Solicitor General, representing the state before the U.S. Supreme Court, the Ninth Circuit, and the Montana Supreme Court. Since 2011, the nominee has been a well respected professor, scholar, and practitioner of constitutional law at the Alexander Blewett Law School in Montana. The vacancy that he would fill has been open for almost 14 months. Thus, the Senate must promptly grant Johnstone a rigorous floor debate and confirm him.

The vacancy arose in March 2022, when Chief Judge Sidney Thomas, for whom Johnstone had ably clerked, announced that he would assume senior status upon a replacement’s confirmation. Biden actively consulted Sen. Jon Tester (D-Mont.) about Johnstone whom the lawmaker powerfully supported. When Biden nominated Johnstone, Tester lauded “Johnstone’s distinguished career as a lawyer and public servant [which] makes him well qualified to serve in this critical role [and a nominee with] a proven track record of standing up for our constitution and applying the law without any personal bias.”

When Biden named Johnstone, the White House press release canvassed Johnstone’s professional attainments. He is extremely intelligent, diligent, and ethical while possessing balanced temperament. Johnstone earned a well qualified rating, which is the best, from the ABA Standing Committee on Federal Judiciary.

In October’s Judiciary Committee hearing, Tester introduced Johnstone, praising the nominee’s capabilities and urging colleagues to promptly appoint him. Johnstone professionally exhibited the qualities described, and panel members appeared satisfied with his clear responses. However, Sen. Chuck Grassley (R-Iowa) comprehensively pressed Johnstone about his Second Amendment views.

At a Dec. 1 meeting, the committee deliberated about Johnstone’s qualifications, while Grassley elaborated his criticisms of the nominee’s perceived Second Amendment perspectives that the senator voiced earlier. However, the panel reported Johnstone on a close ballot when Sen. Lindsey Graham (R-S.C.) passed on voting. Tester’s colleague, Sen. Steve Daines (R-Mont.) then issued a press release, which contended that Johnstone’s “record of undermining the Second Amendment and supporting President Biden’s reckless southern border policies are deeply concerning and [threaten] Montana values.” Daines claimed that he shared with Tester and Biden “recommendations of qualified candidates who would not legislate from the bench, but [they went] in a different direction.” In early January 2023, the Senate returned to Biden Johnstone and dozens more nominees, whom it did not accord votes in the 117th Congress. Biden then renamed Johnstone and others the identical day. On Feb. 9, the panel approved Johnstone 11-10.

Related ideas show why the Senate must promptly confirm Johnstone. First, Thomas’ vacancy has been open nearly 14 months. Second, Biden named Johnstone last September. Mandating that nominees wait lengthy periods can mean that selections must place their careers and lives on hold. Third, the prolonged vacancy could make Thomas decide large caseloads, although numerous senior jurists currently address fewer suits. Thomas continues resolving a substantial docket, which helps the court keep swiftly, inexpensively, and fairly resolving the nation’s biggest appellate caseload. Numerous litigants, counsel, and the public are indebted to the experienced, collegial jurist for his robust, ongoing service.

However, the delay and political conflicts among senators which might have left Thomas’ post empty seem unfair to the dedicated public servant who earned a senior judgeship months ago. A valuable illustration of these unproductive dynamics was Tester’s recent claim that Daines lobbied “fellow Republicans on the Judiciary Committee,” asking that they vote against Johnstone to give Daines cover by describing the ballot as partisan.

Majority Leader Chuck Schumer (D-N.Y.) must quickly provide a rigorous Senate floor debate and vote, which appoints Johnstone to the Ninth Circuit opening that has long been vacant. Johnstone’s strong record means that he warrants speedy appointment, while the nominee’s powerful attributes will permit the court to continue swiftly, economically, and fairly deciding the nation’s largest circuit docket. 

Carl Tobias is the Williams Chair in Law at the University of Richmond.