Diarmuid O'Scannlain
O'Scannlain in 2018
Senior Judge of the United States Court of Appeals for the Ninth Circuit
Assumed office
December 31, 2016
Judge of the United States Court of Appeals for the Ninth Circuit
In office
September 26, 1986 – December 31, 2016
Appointed byRonald Reagan
Preceded byRobert Boochever
Succeeded byDanielle J. Forrest
Personal details
Born (1937-03-28) March 28, 1937
New York City, New York, U.S.
Political partyRepublican
SpouseMaura Nolan[1]
Children8, including Kate
EducationSt. John's University (BA)
Harvard University (JD)
University of Virginia (LLM)

Diarmuid Fionntain O'Scannlain (/ˈdɪərmɪd oʊˈskænlən/ DEER-mid oh-SKAN-lən;[2] born March 28, 1937) is a senior United States circuit judge of the United States Court of Appeals for the Ninth Circuit. His chambers are located in Portland, Oregon.

Early life and career

Born in New York City, New York, O'Scannlain received a Bachelor of Arts degree from St. John's University in 1957, a Juris Doctor from Harvard Law School in 1963, and a Master of Laws from the University of Virginia School of Law in 1992. He was in the United States Army Reserve, JAG Corps from 1955 to 1978.

In September 1960, O'Scannlain attended the founding conference of Young Americans for Freedom, held at William F. Buckley Jr.'s estate in Sharon, Connecticut. At that conference O'Scannlain was elected to serve on YAF's original Board of Directors.[3]

He was a tax attorney for the Standard Oil Company of New Jersey and New York City from 1963 to 1965, and in private practice in Portland, Oregon, from 1965 to 1969. He was a deputy state attorney general in the Oregon Department of Justice from 1969 to 1971, then an Oregon public utility commissioner from 1971 to 1973, and finally Director of the Oregon Department of Environmental Quality from 1973 to 1974.

Run for Congress

In 1974, O'Scannlain was the Republican candidate for the United States House of Representatives representing Oregon's 1st congressional district, but lost to Democrat Les AuCoin, the first time the district had ever elected a Democrat.[4]

He returned to private practice in Portland from 1975 to 1986, also working as a consultant to the Office of the President-Elect of the United States from 1980 to 1981, and as a team leader for the President's Private Sector Survey on Cost Control (the Grace Commission) from 1982 to 1983. He chaired an advisory panel for the United States Secretary of Energy from 1983 to 1985.

Federal judicial service

On August 11, 1986, President Ronald Reagan nominated O'Scannlain to a seat on the United States Court of Appeals for the Ninth Circuit vacated by Judge Robert Boochever. O'Scannlain was confirmed by the United States Senate on September 25, 1986, and received his commission on September 26, 1986.[5] He assumed senior status on December 31, 2016.[6]

In 2006, he was one of the judges in the panel that upheld the imprisonment of journalist Josh Wolf.[7]

O'Scannlain has sent many of his law clerks on to become Supreme Court clerks, and he is regarded as a "feeder judge."[8]

O'Scannlain continued to be involved in the politics of the federal court system after assuming senior status. He is a strong supporter of splitting the Ninth Circuit.[9] He testified in 2017, before the U.S. Senate Judiciary Committee in support of breaking up the 9th Circuit. On July 31, 2018, he testified again in the Judiciary committee in support of breaking up the 9th Circuit Court of Appeals. He was joined on a panel by his former clerk, Brian Fitzpatrick, a professor at Vanderbilt Law School. Senator Mazie Hirono from Hawaii noted that his written testimony was almost word-for-word what he had contributed a year earlier.

He supported the nomination of Ryan Bounds, another former clerk, to the 9th Circuit Court vacancy created by his taking senior status. That nomination was withdrawn after controversial newspaper writings by Bounds as a student at Stanford University on the subject of the civil rights of minorities and women were discovered. Bounds had failed to deliver them to the Committee, and Oregon's Democratic Party senators withheld their blue slips.[10] O'Scannlain was ultimately succeeded by another of his former clerks, Danielle J. Forrest.[11]

Rulings

In a controversial March 2010 case, O'Scannlain joined the majority opinion that Seattle police officers did not employ excessive force when they tasered a pregnant woman.[12] He was joined by Judge Cynthia Holcomb Hall in a contested 2–1 decision (judge Marsha Berzon dissented).

On February 13, 2014, O'Scannlain wrote the majority opinion in the case of Peruta v. San Diego, and issued a ruling that stated California's may-issue concealed carry rules, as implemented by the County of San Diego, in combination with a ban on open carry in most areas of the state, violate the Second Amendment, because they together deny law-abiding citizens the right to bear arms in public for the lawful purpose of self-defense.[13] Consuelo María Callahan joined him in the majority, while Sidney Runyan Thomas dissented. Peruta was later overturned en banc.

In Spokeo, Inc. v. Robins, O'Scannlain found that under the Fair Credit Reporting Act a plaintiff had standing to sue an allegedly inaccurate website.[14][15] After that decision was found to be in error by the Supreme Court of the United States and remanded, O'Scannlain, again, found the plaintiff had standing to sue.[16][17]

On July 24, 2018, O'Scannlain wrote the majority opinion in the case of Young v. Hawaii, which said that the Second Amendment protects the right to open carry in public.[18][19] The State of Hawaii requested a rehearing en banc and the Ninth Circuit held the hearing on September 24, 2020.[20] O'Scannlain participated in the en banc hearing.

On February 10, 2020, O'Scannlain wrote an opinion respecting the denial of en banc. The original panel had ruled that a prisoner with gender dysphoria had 8th amendment rights to sex reassignment surgery. O'Scannlain explained that as a judge in senior status, he cannot vote on these petitions, but he can issue statements respecting the denial of en banc. In the opinion, he mentioned that the 9th circuit is the first circuit to rule that denying gender reassignment surgery violates the 8th amendment, and that the 9th circuit is in conflict with other circuits' rulings, causing a circuit split.[21]

In September 2020, O'Scannlain wrote for the majority when it found that a robocall defendant could not force the plaintiff into arbitration based on a customer agreement the plaintiff had signed with a separate company several years before it had been acquired by the holding company that now also owned the defendant.[22] O'Scannlain also concurred separately to argue that even if the Federal Arbitration Act had preempted state law limitation on absurdity in contracts, it still did not require arbitration of claims wholly unrelated to the original contract.[23]

References

  1. ↑ "Hon. Diarmuid F. O'Scannlain". fedsoc.org. Federalist Society. 24 October 2019. Retrieved 14 September 2023.
  2. ↑ Lat, David (29 September 2006). "Congratulations, Judge O'Scannlain!". Above the Law. Retrieved 14 February 2014.
  3. ↑ M. Stanton Evans, Revolt on the Campus (Chicago: Henry Regnery Co., 1961), 109–10.
  4. ↑ "New Faces, New Strains". Time. 1974-11-18. Archived from the original on November 3, 2012. Retrieved 2009-06-19.
  5. ↑ Diarmuid O'Scannlain at the Biographical Directory of Federal Judges, a publication of the Federal Judicial Center.
  6. ↑ ""Ninth Circuit Judge Diarmuid O'Scannlain to Assume Senior Status" Public Information Office, United States Courts for the Ninth Circuit, September 26, 2016" (PDF).
  7. ↑ Josh Wolf v. United States Ninth Circuit
  8. ↑ Lat, David (5 May 2014). "Supreme Court Clerk Hiring Watch: Is October Term 2014 Filled Up? Plus A List Of Top Feeder Judges".
  9. ↑ "20 Questions for Circuit Judge Diarmuid F. O'Scannlain of the U.S. Court of Appeals for the Ninth Circuit". law.com.
  10. ↑ Byrnes, Jesse (July 19, 2018). "Controversial Trump judicial nominee withdraws". The Hill. Retrieved July 31, 2018.
  11. ↑ Oregonian/OregonLive, Maxine Bernstein | The (2019-11-06). "U.S. Senate confirms Washington County Judge Danielle Hunsaker for 9th Circuit federal appeals court seat". oregonlive. Retrieved 2019-12-30.
  12. ↑ David Kravets: Court OKs Repeated Tasering of Pregnant Woman – Wired News Threat Level column, 29 March 2010
  13. ↑ Dolan, Maura, and Perry, Tony (February 13, 2014). "Court Overturns Restrictions on Concealed Guns in Much of California", Los Angeles Times. Retrieved February 14, 2014.
  14. ↑ Note, The Supreme Court, 2015 Term — Leading Cases, 130 Harv. L. Rev. 437 (2016).
  15. ↑ Robins v. Spokeo, Inc., 742 F.3d 409 (9th Cir. 2014).
  16. ↑ Note, Recent Case: Ninth Circuit Allows Fair Credit Reporting Act Class Action to Proceed Past Standing Challenge, 131 Harv. L. Rev. 894 (2018).
  17. ↑ Robins v. Spokeo, Inc., 867 F.3d 1108 (9th Cir. 2017).
  18. ↑ Note, Recent Case: Ninth Circuit Panel Holds Open-Carry Law Infringes Core Right to Bear Arms in Public, 132 Harv. L. Rev. 2066 (2019).
  19. ↑ Young v. Hawaii, 896 F.3d 1044 (9th Cir. 2018).
  20. ↑ "Watch recording for George Young, Jr. v. State of Hawaii, No. 12-17808". www.ca9.uscourts.gov. Retrieved 2020-11-07.
  21. ↑ http://cdn.ca9.uscourts.gov/datastore/opinions/2020/02/10/19-35017.pdf
  22. ↑ Note, Recent Case: Ninth Circuit Refuses to Enforce Infinite Arbitration Agreement, 134 Harv. L. Rev. 2871 (2021).
  23. ↑ Revitch v. DIRECTV, LLC, 977 F.3d 713 (9th Cir. 2020).
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