Supreme Court

Meet Paul Watford, One of Obama's Potential Nominees to Replace Scalia on the Supreme Court

What do we know about possible SCOTUS nominee Paul Watford?

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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.

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  1. Well, he seems better than I’d expected, though there’s no way he gets confirmed this year.

    The real question here is how 4 Supreme Court justices thought cops should be allowed to look at a hotel’s registry with no warrant.

    1. Third party doctrine, I assume.

    2. No, he’s fucking awful.

      The death penalty is explicitly permitted by the constitution, and I don’t give a fuck if he doesn’t like it.

      1. I’m looking through his decisions on the issue of the death penalty and it doesn’t look like he’s actually arguing the death penalty is unconstitutional. The brief he submitted regarding the death penalty was specifically about this:

        “Mr. Watford assisted in submitting an amicus brief to the Supreme Court in Baze v. Rees on behalf of a number of groups who opposed Kentucky’s three-drug lethal injection protocol”

        So he was opposing a specific means of carrying out the death penalty, presumably on cruel and unusual punishment grounds, not arguing the death penalty is purely unconstitutional. Do you have any other information on this?

        1. As an appellate judge he actually apparently upheld the death penalty in California by reversing a district court decision.

        2. I know that it a sitting judge files an amicus brief, he’s definitely an activist.

          There’s a right way to get rid of the death penalty. This isn’t it.

          1. He wasn’t a sitting judge at the time, he was working for a law firm. Baze v. Rees was decided in 2008 and he wasn’t elevated to the bench until 2012.

            1. he wasn’t elevated to the bench until 2012

              Wouldn’t “lowered” be more appropriate?

      2. No, he’s fucking awful.

        I skimmed the article.

        He’s been on the 9th circuit for 4 yrs. and Reason combed through his opinions and found exactly 2 worth holding up as shining examples of libartarianism.

        Either he’s really bad at cranking out judicial opinions or he’s got lots of really bad opinions that Reason’s not talking about.

        Either way, two opinions and Reason is positing him as Obama’s rock-solid anti-liberal appointment? Seems reasonable *drink*.

        1. Reason is positing him as Obama’s rock-solid anti-liberal appointment?

          I missed this part of the article.

          1. I missed this part of the article.

            Sorry, I was just underwhelmed by the These *two* district court opinions will raise some liberal eyebrows!-level reporting.

            My kneejerk reaction to the typical lack-of-content reporting.

        2. He’s been on the 9th circuit for 4 yrs. and Reason combed through his opinions and found exactly 2 worth holding up as shining examples of libartarianism.

          Either he’s really bad at cranking out judicial opinions or he’s got lots of really bad opinions that Reason’s not talking about.

          Given that he’s not actually been nominated yet, i’d give Root a pass on having to do comprehensive due diligence on everything the guy has ruled on.

          but i got the same impression from the examples given – it seems like a few things were cherry picked that would make him seem appealing. It would be better if there were also some examples ‘from a libertarian POV’ where he completely sucked, at least for perspective.

          1. It would be nice to mention other examples, regardless of POV, to establish that more research was done than just finding “the good parts”.

            1. to be fair, a lot of rulings (most?) are boring as fuck and meaningless in establishing ‘what a person actually thinks’.

              1. True. It is also kind of hard to definitively establish how someone will rule as a SCOTUS Justice based upon how they ruled as a district/circuit/appellate court judge, given that the former have much more freedom than the latter.

                Indeed, someone might rule “one way” as a judge and “the other way” as a justice on similar cases, without any real change of personal opinion.

            2. They looked for “opinions notable from a libertarian perspective” not just “the good parts”. Presumably, if they had found bad ones, they would have reported them along with the good ones. Doesn’t mean something isn’t hiding somewhere, but it’s a start.

        3. He’s had 2 rulings that have come up before the SC, and the SC agreed in both cases – His other rulings would be less noteworthy because in theory the issue wasn’t contentious enough to get cert and therefore straightforward/rulebound/already decided/etc

      3. huh.

        i’ve never been a death-penalty person. its sort of like abortion for me; i just don’t bother thinking much about it since i don’t plan on committing capital crimes or growing a uterus.

        but i’d think in the order of my own personal priorities, my libertarian-brain would personally say, “no” in general to it, and not merely defer to the fact that it happened to be in the constitution.

        But I get your point that as a jurist you want someone who isn’t *doing the same* and simply applying their personal moral calculus to law rather that following the strictures of what they’ve been given by the constitution.

        but given the gravity of Death Penalty issues, and how the courts have historically handled them – unless there’s some other additional area where this guy seems to go off the reservation and apply the same ‘It Don’t Feel Right!” POV… I’d probably be willing to give him a pass on that one thing.

        1. It’s the only thing I know about him. It’s fair to assume that he’ll apply his “moral calculus” elsewhere too.

          Again, regardless of how you feel about the death penalty, it’s explicitly permitted by the constitution. There is no gray area. No penumbras.

          The judiciary is not supposed to be a 2nd executive or legislative branch of the government.

          1. Again, if you have any actual cite to an instance where he’s argued the death penalty is unconstitutional, I’d like to see it. As it stands, all I’ve seen is that he’s a) upheld the constitutionality of California’s death penalty (which contradicts your claims about him) and b) submitted an amicus brief criticizing the secrecy of Kentucky’s death penalty, not the constitutionality of the death penalty itself.

          2. regardless of how you feel about the death penalty, it’s explicitly permitted by the constitution.

            I get that, and i agree with your point, which i think is a good one.

            I also think Irish raises good points about the fact he was at a law firm – not a judge at the time – and that the argument was ” presumably on cruel and unusual punishment grounds, not arguing the death penalty is purely unconstitutional.”…. which sort of dilutes it a bit. Which is what i meant above about ‘how courts have typically handled disagreements’ ; not ‘anti-constitutional’, but suggesting that there is a conflict w/ the ‘cruel and unusual punishment’ aspects.

            (*which from a legal POV i actually think is kind of dumb, but i accept that this is how its been challenged in the past)

        2. He’s actually decided cases upholding California’s death penalty as constitutional and the amicus brief he sent to the court was specifically on the matter of HOW Kentucky was executing people. The brief was also submitted when he was working as an attorney and before he was a judge, so it’s hardly improper for him to do so.

          Here’s the amicus brief.

          Specifically, they’re arguing that the lethal injection protocols are too secretive and therefore aren’t open to outside scrutiny. He’s not arguing the death penalty is unconstitutional, and I can’t find any instance where he has.

      4. I thought you teathuglicans are all pro-life. You should love the idea of a living, breathing constitution.

        1. “I thought you teathuglicans are all pro-life. You should love the idea of a living, breathing constitution.”

          I’m not sure who you think is on this board with the “you Teathuglican” comment. I’ve seen Libertarians condemn the Tea Party, Republicans and Thugs. Also, I’ve seen Libertarians split on abortion. Some are pro-life, some are pro-abortion. So one label does not fit all. Disclaimer: I’m not a Libertarian, these are just my observations from the articles and comments here at Reason.

          As for the “living, breathing constitution”, that’s just silly. A law is a rule, entered into print and is expected to be obeyed. Laws are not supposed to be “flexible”. Many appear to be, such as speeding laws, security laws if your name is Clinton, and migration laws. That’s not to say those laws are “alive”. They’re not. It just means the people who are supposed to enforce those laws are granting themselves the power to override those laws.

          The CORE laws outlined in the Constitution should NOT be so easily disregarded, as they are the foundation of our liberties!

          My opinion.

          1. In my opinion, spittoon was being sarcastic.

        2. I thought you teathuglicans are all pro-life.

          This is a libertarian site. In any case, libertarians, tea party members, and Republicans are split on abortion, just like the country.

  2. A non-starter. Why bother considering him?

    1. He certainly seems from this selection of examples to be “the best sort that could be expected” from an Obama nom

      But i’d like to see something more like a scorecard of his rulings on things like gun cases, union-related things, narrow-versus-expansive readings of regulatory authority…. that sort of stuff.

      Unfortunately, given he won’t be “The First Left-Handed Polysexual Mongolian Epileptic Jurist”-to be nominated, I suspect Obama may pass on him.

      1. That’s the first thing I thought. Both these rulings are great, but where does he stand on the 2nd? Frankly, I care most about that one, as it tends to reinforce the rights protected by the rest.

  3. Where does Watford stand on the issues? What’s in his legal record?

    What does that have to do with anything? The more important question, from a “progressive” perspective, is what boxes does he check? What “first” will he fulfill?

    1. beat me to it.

    2. 1st mulatto.

  4. Isn’t the 9th circuit where all the raging dickbags are?

    1. The 3rd circuit is pretty bad, too.

  5. He clerked for Alex Kozinski, who had good things to say about him.

    http://www.latimes.com/nation/…..story.html

  6. “…Post objects to the Reed decision on the grounds that its “sweeping” logic “endangered all sorts of laws.”…”

    Sounds good to me!

  7. Obama appointed Sotomayor, and she was overturned by the Supreme Court a year earlier. At least this guy isn’t failing upwards. Yet.

  8. From the SCOTUS decision on hotel guest registries:

    Sotomayor’s opinion was joined in full by Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagan. Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Sameul Alito all voted in dissent.

    From wikipedia:

    Justice Antonin Scalia, joined by Roberts and Thomas, wrote a dissent to argue that such a warrantless search is permitted in this case because it satisfies the conditions of a regulatory scheme for a closely regulated business.

    Hm.

    1. You are assuming they have principles which are applied fairly and equitably; where police are concerned, Scalia is (was) a pretty reliable “sure, why not” vote while Sotomayor is a pretty reliable “fuck no” vote; the other 7 are less predictable.

  9. “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”

    I wonder why he use the adjective ‘non-commercial’ in that sentence. Does commercial speech has some special sauce?

    1. Legally, yes.

      1. I suppose there is legal injunction on making a sales pitch for the hovercraft I have built in my garage. And you’ll get all of your FICA tax back with interest.

    2. Commercial speech is afforded far less protection under 1A jurisprudence.

      1. This must be why there a several herbal oncology clinics a stone’s throw away from me and pills at every convenience store.that will make little man stand up.

  10. The given cases highlighted all seem to show this judge had libertarianish views on those topics. But, given that he’s under consideration by Obama, I would be really surprised if he was nominated and was not terrible overall, given Obama’s animus towards libertarians.

    1. It’s political theater and President Obama is very sharp on this. Dimwit Mitch McConnell threw the gauntlet down and said Obama will not participate in the selection of the next Supreme Court Justice without waiting to see his opponent’s hand, a hand he had to show. Good grief, I should give up my daytime job and play poker with stupid Republicans.

      1. Alternatively, by saying they’ll refuse to hear him out on anyone at all it might force him to put forward someone bipartisan if he wants to win brownie points with the people.

        It all depends who you want to believe is smarter. Frankly, I see it as more of a slap fight.

  11. If I’ve learned anything in the last 8 years, It’s not to trust someone that doesn’t have a long record of decisions attached to them. Otherwise, it’s simply too easy for the machine to churn out bullshit. This current crop of Presidential nominee’s tells a similar story. The machine has learned that experience is anathema, since that makes it difficult to whitewash their guy as ‘X’, or when necessary, ‘Y’.

    4 years as a judge is too thin without more than 2 data points to connect together. The old axiom a stopped clock can be right twice a day is about how I feel about the entire Obama administration, only it’s running on Military time.

  12. This guy could be a solid nominee.

    But it seems like Obama is playing the diversity game.

  13. DOA
    No one nominated by 0blama will be considered.
    Don’t waste the effort to research.

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