Judge Paul Watford of the U.S. Court of Appeals for the 9th Circuit is reportedly one of the three candidates now under final consideration by President Barack Obama for nomination to replace Justice Antonin Scalia on the U.S. Supreme Court. The other reported finalists are Chief Judge Merrick Garland of the U.S. Court of Appeals for the District of Columbia Circuit, and Judge Sri Srinivasan, also of the D.C. Circuit. For the sake of argument, let's assume that Watford is going to be the nominee to replace Scalia. Where does Watford stand on the issues? What's in his legal record?
Watford was nominated to the 9th Circuit in 2012 by President Obama and confirmed by the U.S. Senate by a vote of 61-34. He faced significant opposition from Republican Senators and conservative activists, who objected in particular to Watford's legal views on immigration and the death penalty. In 2012, for example, Watford was one of the attorneys on an amicus brief submitted by the ACLU and other groups urging the Supreme Court to strike down Arizona's controversial immigration law S.B. 1070. Watford has also come under fire from some conservatives for his work on an amicus brief in 2008 that urged the Supreme Court to invalidate the lethal injection protocol used by the state of Kentucky.
From a libertarian perspective, Judge Watford has written two opinions while on the 9th Circuit that are particularly notable. One of those opinions centers on the Fourth Amendment while the other opinion deals with the First Amendment. Here's what we know about Watford's views in these two important constitutional cases.
In the 2013 case of Patel v. Los Angeles, Watford wrote the 9th Circuit's majority opinion striking down a Los Angeles ordinance requiring hotels to make their guest registries "available to any officer of the Los Angeles Police Department for Inspection" without the need for a warrant. Hotel owners naturally objected to this, pointing out that the Fourth Amendment generally prevents government agents from conducting warrantless searches.
Judge Watford agreed. "The hotel's property and privacy interests are more than sufficient to trigger Fourth Amendment protection," he wrote. The city of Los Angeles appealed Watford's decision and in 2015 the U.S. Supreme Court rendered its opinion on the matter. Watford's judgment was affirmed when the Supreme Court struck down the offending L.A. statute by a 5-4 vote on Fourth Amendment grounds.
The second opinion worth noting is Judge Watford's 2013 dissent in Reed v. Town of Gilbert. In that case, the 9th Circuit voted in favor of a regulatory scheme adopted by Gilbert, Arizona, which placed stricter rules on signs that gave directions to church than it did on signs advertising political or ideological matters. Pastor Clyde Reed of Gilbert's Good News Community Church objected to this lopsided treatment on First Amendment grounds, arguing that Gilbert was drawing impermissible content-based restrictions on speech.
Writing in dissent, Judge Watford agreed with Pastor Reed. "Gilbert's sign ordinance plainly favors certain categories of non-commercial speech (political and ideological signs) over others (signs promoting events sponsored by non-profit organizations) based solely on the content of the message being conveyed," he wrote. "To sustain the distinctions it has drawn, Gilbert must explain why (for example) a 20-square-foot sign displayed indefinitely at a particular location poses an acceptable threat to traffic safety and aesthetics if it bears an ideological message, but would pose an unacceptable threat if the sign's message instead invited people to attend Sunday church services." The town, Watford concluded, "has not offered any such explanation, and I doubt it could come up with one if it tried."
On appeal, the U.S. Supreme Court sided with Watford's dissent over the 9th Circuit's majority opinion. "Ideological messages are given more favorable treatment than messages concerning a political candidate, which are themselves given more favorable treatment than messages announcing an assembly of like-minded individuals," such as signs giving directions to Pastor Reed's weekly church services. "That," Justice Clarence Thomas wrote for the majority, "is a paradigmatic example of content-based discrimination."
It's also worth noting that Judge Watford's role in Reed v. Town of Gilbert could potentially harm his chances of becoming Obama's SCOTUS nominee. That's because some prominent liberal legal thinkers object to the broad free speech stance endorsed by Watford's dissent and ultimately enshrined by Justice Thomas' majority opinion. One such liberal is Robert Post, the dean of Yale Law School. As The New York Times reported, Post objects to the Reed decision on the grounds that its "sweeping" logic "endangered all sorts of laws." As Post complained to the Times, "effectively this would roll consumer protection back to the 19th century."
We don't yet know who President Obama will nominate to replace the late Justice Scalia on the Supreme Court. But if Obama's nominee does turn out to be Judge Paul Watford, don't be surprised if some liberals worry about the fact that Watford lined up with Clarence Thomas in defense of the First Amendment.