By Ryan Bounds
This article is based on an oral history conducted by Michael O’Rourke with Judge Diarmuid O’Scannlain (June 2008-April 2010) as well as the author’s conversations with Judge O’Scannlain. The oral history is on file with the Oregon Historical Society on behalf of the U.S. District Court of Oregon Historical Society. Its transcript for his oral history can be found at https://digitalcollections.ohs.org/oral-history-interview-with-diarmuid-oscannlain-by-michael-orourke-transcript
It was late September 2016. The presidential election contest between Donald Trump and Hillary Clinton had kicked into high gear and seemed to be tightening (though Secretary Clinton would remain the odds-on favorite to the end). Then Judge Diarmuid F. O’Scannlain, a 30-year veteran of the U.S. Court of Appeals for the Ninth Circuit, did something quite extraordinary: He announced he would take senior status without knowing who would win the White House and name his successor.
All too often, federal circuit judges vacate their seats when the presidency is held by the party that appointed them. It was thus particularly remarkable that Judge O’Scannlain—a former chair of Oregon’s Republican Party—elected to step down when he could readily expect that his successor would be tapped by a Democrat. Judge O’Scannlain takes great pride, however, in confounding those who think federal judges are little more than “politicians in robes.” Indeed, he has crusaded against that misconception throughout his judicial career.
Judge O’Scannlain has emphasized the non-political role of the federal judiciary many times in the more than 800 published opinions and dissents he has authored. This consistent focus combined with a self-consciously originalist jurisprudence has earned him national prominence, according to the Los Angeles Daily Journal, as “the U.S. Supreme Court’s best penpal,” for so often convincing the High Court that his colleagues on the Ninth Circuit have missed the mark.
Judge O’Scannlain has taken his message of judicial modesty far beyond the pages of the Federal Reporter. He has spread it through many of his dozens of articles and hundreds of speeches. And he has modeled the principle for a small army of law clerks he has mentored along the way. One of those law clerks, Judge Danielle Hunsaker, was appointed to succeed him in November 2019, giving Judge O’Scannlain the rare, perhaps unprecedented, distinction among federal circuit judges of having been immediately succeeded by one of his own clerks.