One of Oregon's most senior and powerful judges is announcing Monday he will take a less active role on the 9th U.S. Circuit Court of Appeals.
Judge Diamuid F. O'Scannlain is moving to senior status after 30 years on the court, which serves Oregon, Washington and seven other states. His move at the end of the year will open an Oregon spot on the court that the new president will have an opportunity to fill.
The 79-year-old jurist has been a conservative foil on a court dominated by liberals. The Supreme Court often reverses the 9th Circuit and on many occasions has specifically cited O'Scannlain's dissents as reasoning.
In an interview with OPB, O'Scannlain said his goal has been to limit the power of the judiciary.
should be settled by Congress or the state legislatures, where you have people who are actually elected."
For example, O'Scannlain authored an opinion upholding the ban on affirmative action adopted by California voters in 1996, saying: "If the federal courts were to decide what the interests of the people were in the first place, judicial power would trump self-government ..."
O'Scannlain noted he rejected legal challenges to a ban Washington once had on physician-assisted suicide. But he also opposed legal challenges to Oregon's voter-approved law allowing the practice. His argument: Judges shouldn't be deciding the issue.
He has often been deferential of government agencies he believes are operating in a reasonable manner. The 9th Circuit ruled in 2012 that Secret Service agents unjustifiably moved protestors out of hearing range of President George W. Bush when he was dining in Jacksonville, Oregon, during a 2004 campaign trip. The court said it wasn't the Secret Service's job to protect the president from criticism and noted supporters weren't moved as far away.
O'Scannlain dissented, arguing the ruling "requires Secret Service agents to subsume their duty to protect the president to their newly created duty to act like concert ushers — ensuring with tape-measure accuracy that everyone who wants to demonstrate near the president has an equally good view of the show."
The Supreme Court later unanimously overturned the 9th Circuit decision and ruled that the Secret Service did not violate the free-speech rights of protesters.
O'Scannlain has also been a well-known member of the Federalist Society, a conservative legal group that has sought to help stock the judiciary. In the late 1990s and early 2000s, he was occasionally mentioned as a possible pick for the Supreme Court in a Republican administration.
O'Scannlain said about 20 of his law clerks have gone on to clerk on the Supreme Court. Currently, two of his former clerks are working for Justices Clarence Thomas and Samuel Alito. O'Scannlain just finished hosting a 30th anniversary reunion for about 100 of his former law clerks.
O'Scannlain said his closest friend on the Supreme Court was the late Justice Antonin Scalia, who had similar conservative views. He said the two became acquainted after their sons roomed together at college.
While Scalia often made waves with his controversial remarks, O'Scannlain does not have the same flamboyance. He's known for his friendliness and courtly manners.
A longtime lawyer in private practice, O'Scannlain was also active in Republican politics before he was appointed to the bench. He ran unsuccessfully for Congress in 1974 and was later Oregon Republican chairman. He said he was offered high-level opportunities in the Reagan administration but did not want to move his large family — he and his wife Maura have eight children — to Washington, D.C.
O'Scannlain's own family history is particularly interesting. His father fought in the Irish revolution and was imprisoned by the British before escaping. He returned to fight with those who wanted the new Irish Republic to cover the entire island. His side lost and he moved to Canada and then the U.S.
O'Scannlain's parents continued to speak Gaelic and the judge said that's what he spoke as a young child before he went to school. He demonstrated that he can still rattle off some phrases in Gaelic.
Copyright 2016 Oregon Public Broadcasting
