Nominating Judge Humetewa to the Ninth Circuit

By Carl Tobias

Last October, Ninth Circuit Judge Barry Silverman assumed senior status after 18 years of dedicated service on the nation’s largest appellate court, which encompasses California, seven other western states, Hawaii, Guam, and the Northern Mariana Islands. The jurist’s decision to become a senior judge furnished President Donald Trump a valuable opportunity to appoint U.S. District Judge Diane Humetewa of Arizona as the first Native American federal appellate jurist. Because she is a highly qualified, mainstream judge and the court — which had four vacancies on January 1, 2017 — needs all of its jurists, the President should promptly nominate Judge Humetewa.

In September 2013, President Barack Obama named Humetewa to the District of Arizona. When tapping the nominee, he effusively praised her integrity and “unwavering commitment to justice.” Obama remarked that Humetewa, when nominated, was an upper-echelon campus official for Arizona State University. Between 2009 and 2011, she practiced with Squire, Sanders & Dempsey, in the Phoenix office of the well-respected Cleveland law firm. The prior thirteen years, Humetewa served in the U.S. Attorney’s Office, concluding with promotion to U.S. Attorney, the chief federal law enforcement official. From 2002 until 2007, she was a Hopi Tribe Appellate Court Judge. Between 1993 and 1996, Humetewa served as Deputy Counsel for the Senate Indian Affairs Committee, a position with longtime Arizona Republican Senator John McCain.

Across Humetewa’s exemplary career, she participated in the federal justice system and emphasized legal issues central to Native Americans, areas which have crucial relevance for Ninth Circuit courts. Arizona’s proximity to Mexico means that the courts resolve myriad disputes, which entail criminal law and immigration; vast tribal lands concomitantly yield appreciable numbers of federal cases. A substantial majority on the ABA judicial nominee evaluation committee rated Humetewa qualified; a minority ranked her well qualified.

In Humetewa’s January 2014 hearing, McCain lauded her extensive public sector activity while pressing for “swift confirmation.” McCain pointedly declared that Humetewa’s approval would be historic, the initial “Native American woman to ever serve on the federal court [, it will] be enriched by a member who reflects” Arizona, praising Humetewa’s Hopi Nation initiatives. Sen. Jeff Flake (R-Ariz.), asked questions on behalf of GOP members, appeared satisfied with her careful answers and reiterated his senior colleague’s salient description. In late February, the panel approved Humetewa by a voice vote with no dissent. On May 14, the Senate confirmed her 96-0 following brief debate.

Since then, she has rendered distinguished judicial service and helped the district resolve crushing dockets fueled by criminal and immigration cases. Her appointment has realized other benefits. Ethnic minority and female jurists improve comprehension and disposition of central questions that judges face, limit racial, gender and other prejudices which undermine cases and enhance confidence in the bench.  Humetewa’s ethnicity and compelling Indian Law and federal courts activities have clearly enabled her to deliver justice, which has numerous critical, direct impacts on many Native Americans within and beyond reservations. Thus, elevating Humetewa to the Ninth Circuit, which resolves copious Indian, criminal, and immigration, law questions, would afford manifold benefits.

Obama could have nominated Humetewa, but little time remained in his tenure for the Senate to confirm her. Thus, President Trump should promptly make Humetewa’s nomination. Elevation is a venerable tool which modern Presidents have employed, because the Senate has already confirmed the jurist, who has compiled a lengthy, accessible record. Trenchant Ninth Circuit illustrations encompass Judges Mary Murguia and Jacqueline Nguyen. The White House must assiduously consult McCain and Flake, who should be very supportive, as they promoted Humetewa’s district court appointment, especially by persuading GOP colleagues to favor her approval.

In sum, President Trump should promptly nominate Judge Diane Humetewa to the Ninth Circuit. Because she is a well qualified, consensus jurist, who has much experience addressing critical issues that the Ninth Circuit resolves, Humetewa will serve with great distinction.

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