9th Circuit's Hurwitz to leave active service, giving Biden new vacancy

(Reuters) - U.S. Circuit Judge Andrew Hurwitz is stepping down from active service on the 9th U.S. Circuit Court of Appeals, creating a sixth vacancy for President Joe Biden to fill on the nation's largest federal appeals court.

Hurwitz, an appointee of President Barack Obama, in a letter to Biden on Friday said he planned to take senior status once he becomes eligible to do so in late June and after a successor is confirmed.

Senior status is a form of semi-retirement for judges over the age of 65 who have completed at least 15 years on the federal bench. Presidents may name new full-time judges to fill those judges' seats.

Hurwitz, who joined the 9th Circuit in 2012 after serving on the Arizona Supreme Court, said he had the "honor and privilege" of serving as a judge for almost 20 years and planned to continue on the bench as a senior judge.

Hurwitz's decision to take senior status will create the sixth vacancy for Biden to fill on the San Francisco-based court, which hears appeals from Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.

The U.S. Senate has confirmed all of four of Biden's 9th Circuit nominees to date, including Lucy Koh, Jennifer Sung, Gabriel Sanchez and Holly Thomas. Another 9th Circuit judge, M. Margaret McKeown, earlier this month said she planned to take senior status.

Hurwitz penned high-profile rulings touching on copyright, antitrust, environmental law and class-action litigation.

He authored a 2-1 ruling in 2020 throwing out a closely watched case by children who claimed they had a right to be protected from climate change, and dissented from a decision last year finding private schools were exempt from COVID-19 restrictions in California.

In November, an en banc panel of the 9th Circuit on a 7-4 vote reinstated California's ban on high-capacity magazines, calling it a reasonable means to try reducing gun violence.

U.S. Circuit Judge Lawrence VanDyke, an appointee of former Republican President Donald Trump, dissented, saying the "majority of our court distrusts gun owners and thinks the Second Amendment is a vestigial organ of their living constitution."

The dissent by VanDyke, who frequently writes critically of 9th Circuit judges and precedents, prompted Hurwitz to chastise VanDyke for his "colorful language" attacking the personal motives of his colleagues in an unusual concurring opinion.

"Our colleagues on both sides of the issue deserve better," he wrote.

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