In the fall of 1985, O’Scannlain got a call from someone he had worked with on the president’s campaigns as well as during the transition. It was an emissary for U.S. Attorney General Ed Meese. The caller asked O’Scannlain if he might be interested in serving on the Ninth Circuit Court of Appeals. O’Scannlain demurred, because he had never aspired to the bench and, in fact, had recommended someone else for the vacancy. Meese’s emissary pressed him, however, because the White House was unenthusiastic about O’Scannlain’s preferred candidate.
O’Scannlain took the matter up with Maura. They both appreciated the tremendous honor of such an appointment, which promised “a lot of potential for doing good,” yet they were concerned about the significant pay cut. O’Scannlain raised this qualm with “the folks in Washington,” but they assured him a presidential commission would be recommending a big pay raise for judges and other senior government officials.
Assuaged by that prediction (which proved unduly optimistic), O’Scannlain eventually agreed to be considered. He flew to Washington in spring 1986 for interviews with several lawyers at the Department of Justice. Those interviews “must have gone well,” he says, because he soon learned he would be nominated.
One of the more humorous episodes in O’Scannlain’s winding journey to the bench occurred several months later. At about seven in the morning on August 8, 1986, O’Scannlain was getting ready for work when Maura took a phone call and shouted up the stairs, “There’s a call for you.” O’Scannlain was in the shower, so he asked who it was, and Maura responded, “I think it’s the press.” It was not. It was the press…ident. When Maura realized she had misheard the White House operator, she alerted her husband, who rushed to the phone rather wetter than one likes to be when addressing the Leader of the Free World. Despite all that, O’Scannlain had a “nice conversation” with President Reagan, who was “his most affable self.”
By contemporary standards, the confirmation process unfolded with remarkably little opposition or delay. The Senate received O’Scannlain’s nomination three days after President Reagan’s phone call, and the Judiciary Committee scheduled the confirmation hearing for September 20, 1986. The big event lasted “about twenty-five minutes,” O’Scannlain recalls, and was “[e]xtremely cordial.” Senator Paul Simon of Illinois led the hearing for the Democrats and said “some very nice things.” Just six days later, Oregon’s senior senator, Mark O. Hatfield, called O’Scannlain from the floor of the Senate to report he’d been confirmed by acclamation.
Looking back on it, Judge O’Scannlain reflects that he was one of the last appellate judges confirmed “before the rancor started in ’87” with the failed Supreme Court nomination of Judge Robert Bork. Judge O’Scannlain “was very blessed,” in his estimation, because “it’s been partisan on both sides ever since.”
“Both parties play this game; they’re very, very strident,” Judge O’Scannlain says, and he attributes it to what he regards as the unfortunate fact “that the courts are so important [to] American social policy.” He would prefer it if “Congress w[ere] more jealous of…its own powers to make those cosmic decisions,” but he surmises its members are “perfectly happy” to let the courts make the tough calls.