Judge Gabriel Sanchez – Nominee to the U.S. Court of Appeals for the Ninth Circuit

California appellate judge Gabriel Sanchez makes a young, credentialed, and well-connected candidate for the Ninth Circuit to complete the three-judge package with Judges Koh and Thomas.

Background

A native of Los Angeles, Gabriel P. Sanchez received a B.A. from Yale College in 1998 and then worked as a Fulbright scholar in Argentina. Sanchez then received an M. Phil. from the University of Cambridge in 2000 and a J.D. from the Yale Law School in 2005. After graduating from law school, Sanchez clerked for Judge Richard Paez on the U.S. Court of Appeals for the Ninth Circuit and then joined Munger Tolles & Olson as an Associate.

Sanchez left Munger in 2011 and, after a brief stint with the California Attorney General’s Office, joined the staff of Governor Jerry Brown as Deputy Legal Affairs Secretary.

In 2018, Brown appointed Sanchez to the California Court of Appeal, First Appellate District, where he currently serves as a judge.

History of the Seat

Sanchez has been nominated for a California seat on the U.S. Court of Appeals for the Ninth Circuit to be vacated by Judge Marsha Berzon’s move to senior status.

Legal Experience

Sanchez started his career as a law clerk to Judge Richard Paez on the Ninth Circuit, and then spent six years at Munger, Tolles, and Olson, a firm that has produced multiple Ninth Circuit judges. He then spent eight years working for Governor Jerry Brown.

Munger Tolles and Olson

From 2006 to 2011, Sanchez worked at Munger Tolles and Olson, working alongside future Ninth Circuit Judges Paul Watford, John Owens, Michelle Freidland, and Daniel Collins. Among the cases he handled there, Sanchez represented one of the Defendants in a tort suit seeking damages for injuries allegedly suffered by a Navy serviceman due to asbestos exposure. See Taylor v. Elliott Turbomachinery Co. Inc., 170 Cal. App. 4th 564 (2009). He was also, alongside Collins, on the legal team for Occidental Petroleum in a challenge by environmental groups alleging destruction and illegal contamination. Carijano v. Occidental Petroleum Corp., 626 F.3d 1137 (9th Cir. 2010).

Additionally, Sanchez handled a number of civil rights cases as Munger, including representing the Lawyer’s Committee on Civil Rights in defending California’s policy of allowing undocumented state residents to pay in state tuition. Martinez v. Regents of the University of California, 241 P.3d 855 (Cal. 2010). He also challenged the State of California’s heat-illness-prevention regulation as constitutionally inadequate on behalf of the ACLU. See Bautista v. State of California, 201 Cal. App. 4th 716 (2011). His work in this case won him the ACLU of Southern California’s Social Justice Award in 2010.

Governor Brown’s Office

From 2011 to 2018, Sanchez served as Deputy Legal Affairs Secretary for Governor Jerry Brown, where he advised the Governor on criminal justice issues, as well as executive appointments, and clemency. Among the matters he handled there, Sanchez was the principal author of the Public Safety and Rehabilitation Act of 2016, which expanded rehabiilitative programs, limited prosecutors’ authority to try youth as adults without transfer hearings, and established a framework for prison safety regulations.

Jurisprudence

Since 2018, Sanchez has served as a Justice on the California Court of Appeal, First Appellate District, an intermediate appellate court that hears both criminal and civil cases. On the court, Sanchez joined a unanimous decision by the Court of Appeals reversing the denial of Batson challenges for dismissing a prospective juror who expressed support for Black Lives Matter. Sanchez also joined a unanimous decision reversing a conviction for gross vehicular manslaughter because the prosecutor misstated the law in his closing argument.

Among opinions he authored, Sanchez held that California law did not impose a deadline for the Governor to certify proposed construction projects for expedited administrative and judicial review under the California Environmental Quality Act.

Overall Assessment

As previously noted on this blog, Sanchez, with his youth, stellar credentials, and varied experience, makes for an attractive candidate for the court of appeals. While this is likely to draw opposition from conservatives, it is unlikely to derail his nomination altogether. If Democrats are disciplined, they can confirm Sanchez to the Ninth Circuit by the end of the year, adding a new liberal voice to the court.

27 Comments

  1. I think this is a good pick. I know some people will say there were better picks, but I still think it was a good pick. He passes both of my appeals court test. He has a proven progressive track record
    (This article outlines a lot of that record & he is young enough to be considered for a second Biden Supreme Court vacancy (Biden has already said he will pick a black women for his first pick) should he get that opportunity.

    I will say I do not agree with the direction of the California picks so far all being current judges. I think if that trend continues they will not consider too many qualified candidates that may have taken another career path that did not lead them to be a judge.

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  2. Hard to call Judge Sanchez a liberal, especially considering the type of judges he is replacing. He is certainly considerably to the right of Judge Berzon, Paez, or Fletcher.

    We could have done much better than corporate lawyers (and AUSAs) like Sanchez or Koh in California. If I were in the Senate I would consider voting no.

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    • I’m 100% with you on Lucy Koh (Albeit after her hearing last week I might be included to say she’s more of a quiet liberal then an outspoken liberal then I had previously thought). We definitely could have had a more liberal nominee then Sanchez. Even if you just consider Latino/Latina nominees Victor A. Rodriguez & Mónica Ramírez Almadani would be more liberal. But looking at his record he seems progressive & I doubt his voting pattern will be any different from Judges Berzon, Paez, or Fletcher. For that reason I couldn’t vote against him if I were a Democrat senator.

      Now I see Senator Schumer has filed cloture on Christine O’Hearn for Tuesday at 1130. She is somebody that is such an egregiously bad pick I would certainly think about a no vote on her.

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      • There need to be more outspoken liberals who are willing to stand up and dissent hard from the fake law spewed by the right-wingers on the federal courts. Quiet liberals who go along are no good. If we didn’t have Trump’s atrocious judges on the court, I may feel differently.

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      • O’Hearn is absolutely garbage, and frankly the court would be better with an empty seat than her. O’Hearn is someone we would have gotten during Trump.

        The GOP thinks that O’Hearn is incompetent and will provide more than 40 no votes on her (she got through committee 12-10). Progressive senators should tell Schumer bluntly that they will vote no and force him to pull the nominee.

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      • I’m afraid senator Feinstein is the obstacle for outspoken liberals as judicial nominees for California. I trust senator Padilla on judicial nominees but he’s the junior senator & sadly until Feinstein retires, she will have an outsized role in the process for California. That’s probably why we so far have only gotten sitting judges.

        Nothing personal against judge Jennifer L. Thurston but we don’t need ANY of the California 22 vacancies going to a centrist current sitting judge born in 1967. We should legit be able to get at least a dozen nominees out of the 22 who would be so young & progressive, they would be placed on the Supreme Court possibilities list. Any nominee from California who’s birth year even sniffs the 1960’s should be an all out, long time outspoken progressive such as Nina Perales or Thomas A. Saenz.

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    • I think given the 50-50 split of the Senate, any outspoken liberal nominee, would have a hard time winning confirmation. With predictable opposition to any outspoken nominee ( ie : Vanita Gupta, Kirsten Clarke, Jennifer Sung ) by all or nearly all Republicans, you’ll need the votes of Joe Manchin & Kirsten Sinema. Those two are just looking for the opportunity to show their independence ( either for optics or pure principle ) by voting against such a nominee. I think if Democrats had 2-3 votes to spare, such a nominee would stand more of a chance.

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      • And more importantly I truly don’t think a judge Sanchez voting record will end up being much different then an outspoken liberal anyway. I could see the argument if he doesn’t have a progressive track record but nothing in his past leads me to believe he’s not a quiet liberal. Obviously a few of the names I mentioned above are more progressive but as far as vote for vote goes I’m sure after decades on the court his voting record will pretty much mirror theirs.

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      • I strongly disagree with this surrender strategy. Even if Manchin sinks one or two nominees for being too liberal, he won’t sink all of them. (Manchin has a history of voting against nominees who are too associated with women’s rights.)

        I would just keep nominating extremely outspoken liberals, and deal with the fact that a handful will get sunk. And be prepared to nominated someone else immediately. There are so many quality candidates in California that we should not have to put up with nominees like Sanchez and Koh. For god sakes, Clinton got Berzon, Paez, and Fletcher with a GOP Senate!

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  3. Why has Schumer not filed cloture on Perez (2nd Circuit) a NY based seat?…..That is odd……Also not sure why Durbin let Republicans hold Sung & Robinson over for a 2nd week….

    And why no nominee yet for Tatel’s seat, he took senior status back in MARCH…..White House is sleeping on this for some reason…..

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  4. I think the issue is what are you looking for. If you are looking for an outspoken fire breathing liberal then I would agree Sanchez isn’t that. But if your looking at votes, I truly don’t see anything in Sanchez past that leads me to believe his votes will be much different from Berzon, Paez, or Fletcher.

    I think a good example of this would be Justice Sotomayor & Justice Kagan. Sotomayor was an outspoken liberal & Kagan was more of a consensus builder bringing on conservatives while she was the dean of a then mostly all liberal faculty at her university. It was reported the first trip she took after she took the oath was a hunting trip with Justice Scalia.

    Now looking at that you would think over their careers on the bench Justice Sotomayor would be much more liberal then Kagan. But when you look at their voting patterns they are nearly identical. I would even argue Kagan is more effective as reports are Chief Justice Roberts was initially going to vote Obamacare down but it was Justice Kagan that helped sway him.

    Don’t get me wrong, I wouldn’t have been upset if Victor A. Rodriguez or Mónica Ramírez Almadani were nominated instead of Sanchez. I’m just saying at the end of the day I see no reason to believe he will not have the same voting record as either of them or the names you mentioned over his career. Now if the 9th circuit was as liberal as it was after Presidents Carter or Clinton left office then I would say fire breathing liberals are the way to go. But with 10 Trump appointees & 3 GW Bush appointees (Hopefully 1, 2 or all 3 retire over the next couple of years), the 9th circuit isn’t actually that liberal anymore. It’s probably not even the most liberal circuit court anymore. So having a few Justice Kagan like minded judges might actually be good over time when it comes to swaying a judge Mark J. Bennett or judge Bridget S. Bade for future en blanc cases.

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    • As I said earlier, there need to be more outspoken liberals who are willing to stand up and dissent hard from the fake law spewed by the right-wingers on the federal courts. Quiet liberals who go along are no good. Even if Sanchez votes the same way as Paez, it is worthless when Collins, Butamay, or Nelson are spewing right-wing propaganda as legal analysis, unless he is willing to dissent in nasty terms and call it out for what it is.

      I am just not okay with nominating a bunch of young Merrick Garlands anymore with a Dem Senate. We need far more progressive judges to push the legal spectrum and dissent hard against this right-wing fake law, and not go along with the far right. Basically we need to find judges who could be the liberal versions of Scalia and Thomas in their early years, or the next Reinhardts and Berzons. (Sotomayor seemed like she was going to be this dissenter early in her career but has really backed off in the past few years.)

      Historically these dissenters have not come from the legal establishment, but were a little bit on the outside, at least in some ways. You’re not going to get this kind of a judge from someone who followed the path of most of the traditional candidates., i.e. law review at a top law school, clerk for an establishment minded appellate court judge like Garland, clerk at the Supreme Court. Then work in Big Law for a few years/as an AUSA and/or in the WH Counsel’s office/OLC/Solicitor General’s office, etc.

      I understand the strategy of Breyer or Kagan on the Supreme Court (although I think it is a hopeless one), but there is no reason to follow that in the lower courts. Justice Kagan’s approach works when you had Justice Kennedy as the swing justice. But it is no good when you have Justices Thomas, Gorsuch, Alito, and Barrett. None of those far right extremists are going to listen to what Kagan has to say. Kavanaugh might listen, but only from the perspective that a ruling may hurt the GOP politically. They are all either right-wing ideologues, political hacks or both. And the sooner people understand that, the better.

      During this period of right-wing usurpation of the judiciary, I care far more about willingness to expose these right-wing hacks for what they are. “Consensus liberals” are no better than conservatives here, and potentially worse in that they give legitimacy to extreme right-wing judicial views.

      It’s why candidates like Myrna Perez, Jennifer Sung, Holly Thomas, and Jia Cobb were such a huge breath of fresh air. We should keep nominating people like this (including a few academics) and keep at it even if a few get rejected. Not Lucy Koh or Gabriel Sanchez.

      TL/DR: “Voting the same way” is NOT sufficient and is not acceptable.

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    • Secondly, the next set of judges should outline the legal to advance a progressive or even a center-left legal philosophy. It may be 20 or 30 years before it becomes the majority, but the groundwork needs to be laid down now and validated by liberal judges, even in dissent.

      Before we had FDR’s New Deal Supreme Court, we had Harlan I, Holmes and Brandeis dissents. Before we had the Warren Court in the 1960s, we had Hugo Black and William Douglas framing that agenda in dissent after dissent. Before we had the conservative court of the 1990s and 2000s, we had Rehnquist filing solo dissents in the 70s and 80s. Before we had this extremely right-wing court thanks to Trump, we had the biting dissents from Scalia and Thomas.

      Remember the Jon Michaels article (see below), we need to find judges who are in this vein to expose this right-wing fake law, not to make peace with it. And then outline the progressive legal philosophy in dissent.

      https://www.acslaw.org/expertforum/advancing-a-left-liberal-jurisprudence/

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      • While I agree with most of what you said, I think many of the circuit courts we have now (The 2nd, 9th & 10th for example) are close enough where we can aim for winning en blanc cases NOW versus waiting decades writing fiery dissents. If I could get a judge Sanchez to sway just one Republican appointee today, that is more valuable to me then a fire breathing liberal writing a dissent that will be seen 30 years form now.

        At the end of the day I agree with you that an outspoken liberal is good but I think our disagreement is that a Sanchez type judge is bad. Now Lucy Koh is different because I am not convinced her voting pattern will be the same as the judges you mentioned AND she is on the older side. So in her case I definitely agree with you.

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      • “While I agree with most of what you said, I think many of the circuit courts we have now (The 2nd, 9th & 10th for example) are close enough where we can aim for winning en blanc cases NOW versus waiting decades writing fiery dissents. If I could get a judge Sanchez to sway just one Republican appointee today, that is more valuable to me then a fire breathing liberal writing a dissent that will be seen 30 years form now.”

        What value is there to that when this SCOTUS full of hacks will just reverse such a decision with their shadow docket?

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      • Well that’s a totally different subject. The Supreme Court needs to be reformed with at least adding two justices to make up for the stolen seats over the last 4 years. Unfortunately there is no chance of that happening with the make up of the senate we have now.

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      • Well that’s a totally different subject. The Supreme Court needs to be reformed with at least adding two justices to make up for the stolen seats over the last 4 years. Unfortunately there is no chance of that happening with the make up of the senate we have now.

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  5. It’s not a “totally different” subject. If we are going to get right-wing decisions regardless from the SCOTUS, there is no value in nominating judges like Sanchez to sway reasonable conservatives in the hope of winning an en banc arguments in close circuits. That goes completely up in smoke if SCOTUS just overturns them anyway. Same thing with Justices like Breyer and Kagan. ​

    Your argument would be more applicable if we had the pre-2016 SCOTUS or even the pre-2020 SCOTUS. It has little merit now.

    Also if you want a liberal legal system 20-30 years from now, you have to build that today. Not go after pyrrhic small victories in the circuit courts that get overturned by SCOTUS. The Federalist Society and other right-wing groups had to work for 40 years to get the court they have today.

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    • We have to remember the Supreme Court (Even this conservative court) still only hears about 80 cases a year. So I don’t think I would be concerned about those 80 more then the hundreds of thousands of other cases in which the court of appeals are the real Supreme Court for most litigants.

      But like I said earlier I am not saying outspoken liberal nominees are bad. We are in complete agreement on that. I’m just saying judges like Sanchez in my opinion bring value as well. I don’t want every nominee to be like him but I don’t think having some has no value.

      Also we are forgetting these judges are usually a product of the states senators (When they are from the same party as the president).. California has senator Feinstein who is no liberal in my mind. Now if I was a California resident I would have voted for Kevin de León which he & senator Padilla would probably produce more liberal nominees. But that’s not what the voters in California chose so unless President Biden will just forgo senators from his own party’s recommendations (Which in a 50/50 senate is probably not advisable), then I would argue it could be a lot worse.

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      • The SCOTUS officially hears 80 cases a year. That’s where the shadow docket comes in. SCOTUS regularly decides cases without granting oral argument to them, and with this right-wing court, it has gotten more frequent. What they will do is simply decide cases on the briefs or just grant a stay for a circuit court decision it doesn’t like.

        So even if a judge like Sanchez is able to convince a conservative or two to vote with him on en banc, this SCOTUS can just overturn it w/o oral argument, rehash the argument of some right-wing dissent, and call it a day. Or it can w/o oral argument ask the Circuit Court to “reconsider” its ruling in light of a previous SCOTUS case.

        If we had the pre-2016 SCOTUS, I would have said yeah, moderate liberal judges have some value. But right now, they have either no value, or are even potentially are counterproductive in that they will sometimes reaffirm the right-wing fake law by “following precedent” without clearly stating that the SCOTUS decision that the precedent is based on itself is garbage. That gives legitimacy to bad right-wing decisions in a way that a panel of only conservatives deciding the same way wouldn’t.

        President Biden should create a committee to select all appellate nominees on his own. There is no reason to outsource this to the senators. Feinstein comes up with some really bad suggestions like Koh/Sanchez, but I doubt she would block a nominee from the White House. And yes, Feinstein should be pressured to resign immediately.

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  6. The SCOTUS officially hears 80 cases a year. That’s where the shadow docket comes in. SCOTUS regularly decides cases without granting oral argument to them, and with this right-wing court, it has gotten more frequent. What they will do is simply decide cases on the briefs or just grant a stay for a circuit court decision it doesn’t like.

    So even if a judge like Sanchez is able to convince a conservative or two to vote with him on en banc, this SCOTUS can just overturn it w/o oral argument, rehash the argument of some right-wing dissent, and call it a day. Or it can w/o oral argument ask the Circuit Court to “reconsider” its ruling in light of a previous SCOTUS case.

    If we had the pre-2016 SCOTUS, I would have said yeah, moderate liberal judges have some value. But right now, they have little or worse can be counterproductive by giving legitimacy to really bad SCOTUS and lower court decisions.

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  7. A lot of the comments on here read like judicial fan fiction. There is no easy way for an outsider to tell the ideology of a judge who comes from private practice or government. Justice Sotomayor had a very conventional legal career, for example, and was both a prosecutor and a commercial litigator at a firm. Judges Friedland and Watford, who have been very good, both spent most of their careers at Munger Tolles. The vast majority of lawyers spend time in private practice at some point in their careers.

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    • I agree. I have made the point on other articles on this website that while I prefer nominees with progressive backgrounds, that doesn’t mean if a nominee has a more traditional background that they are automatically a bad choice. I would just say they should be vetted more thoroughly.

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    • “There is no easy way for an outsider to tell the ideology of a judge who comes from private practice or government.”

      This is pure hogwash. Judges Friedland and Watford are considerably less progressive that Judges Reinhardt, Berzon, Paez, and Fletcher were. And there is a good reason why; Reinhardt and Berzon were labor lawyers, Paez a public interest lawyer, and Fletcher a progressive academic.
      Once the filibuster was abolished for judicial nominees, there was no good reason to nominate Friedland. Obama should have nominated Pam Karlan for the South Bay seat on the 9th Circuit.

      Regarding Justice Sotomayor, we had a judicial record to assess before nominating her to SCOTUS. Elena Kagan is a disappointment, but it was clear she would be one if you looked at her background (specifically recruiting conservatives to Harvard during her tenure).

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