Senate confirms 9th Circuit Judge Ana de Alba

The Senate confirmed U.S. District Judge Ana I. de Alba of Fresno to a vacancy on the 9th U.S. Circuit Court of Appeals Monday, bolstering the majority of appointees of Democratic presidents.

De Alba is the eighth 9th Circuit appointee of President Joe Biden, whose appointments to the narrowly divided court have replaced older judges appointed by Democrats.

The vote was 48-43, with nine senators absent.

U.S. Sen. Joe Manchin, D-WV, who has consistently supported Biden’s other nominees, voted against de Alba. Attempts to reach his representatives were unsuccessful. All Republican senators who were present also voted against her.

The decision by Manchin, who announced Thursday that he was not running for reelection and teased a possible third-party presidential bid, raises questions about whether his votes against de Alba — he also opposed a motion to cut off debate on her nomination on Thursday — was a one-off or if he will start voting against all of Biden’s judicial nominees.

If it’s the latter, Democrats — who narrowly control the Senate with 47 non-Manchin Democrats and three independents who caucus with them — may need to rely on the tiebreaking vote of Vice President Kamala Harris on judicial nominees as well as the health and good attendance of their other senators.

A graduate of UC Berkeley and its law school, de Alba, 43, is the daughter and granddaughter of Mexican immigrants. She served on the Fresno County Superior Court before her appointment to the federal bench.

During her nomination hearing in May, she emphasized the pro bono work she did while she was an employment lawyer at Lang, Richert & Patch, a Fresno firm where she practiced before joining the state bench. De Alba cited the example of her mother, with whom she said she and her brothers worked in the fields of the Central Valley as a child.

“My mother didn’t get paid,” she told the judiciary committee. “That year, we went without school clothes. I vividly recall my mother crying in the bathroom.” She testified she never slept in her own bed until she was 15.

Last year, de Alba was confirmed to a district court position with a few Republican votes and that of Manchin.

But she got no Republican backing for the higher stakes 9th Circuit job. Senate Republicans portrayed de Alba as soft on crime, citing a sentencing decision in a child pornography case that was less than what prosecutors sought, and an order removing one of a man’s GPS monitoring devices. He was convicted of aiding his brother, who killed a police officer.

De Alba, in response to questions about the monitoring case, said the man already had two monitoring devices, one from U.S. Immigration and Customs Enforcement because he was in the country without permission, and the other from pretrial services.

In the child pornography sentencing case, prosecutors argued that defendant Tanner Joel Hernandez-Fields deserved a longer prison term because of “his sexual interest in minors by obtaining and viewing images of children being sexually abused.”

Assistant U.S. Attorney David L. Gappa sought a prison term of eight years and a month. But de Alba in January agreed with the probation recommendation of 5 1/2 years — less than the sentencing guidelines. USA v. Hernandez-Fields, 20-CR-00221 (E.D. Cal., filed Nov. 19, 2020).

“I have to do an individualized assessment,” de Alba said during the hearing, citing another case in which she gave a sentence requested by the government. “It is not my job to rubber stamp what the government requests, what probation requests or what the defense wants.”

The 9th Circuit vacancy was even more important because former 9th Circuit Judge Paul J. Watford, an appointee of President Barack Obama, resigned in May to become a partner at Wilson Sonsini Goodrich & Rosati LLP. Other judges appointed by Democratic presidents had taken senior status pending confirmation of their successors.

But Watford’s departure had reduced the slim majority of 9th Circuit judges appointed by Democratic presidents to 15-13 over judges picked by Republicans

“Judge Ana de Alba is a seasoned litigator with both federal and state level judicial experience,” Senate Judiciary Committee Chair Dick Durbin, D-IL, wrote in a statement, noting that she was recommended by the late Sen. Dianne Feinstein, D-CA.

“She is a legal champion for civil and labor rights, a sense of justice shaped by her powerful personal experience as a first-generation Mexican American and the daughter of farmworkers who were denied proper employment protections,” Durbin added.