By Carol J. Williams
April 19, 2009
Reporting from San Francisco
Birthed in Gold Rush calamity and come of age on the frontier, the U.S. 9th Circuit Court of Appeals has been resolving disputes for 150 years in a region once prone to settling differences with pistols at high noon. If one looks closely at the bench in the main courtroom, there is a nick left by a bullet fired during the 1917 Hindu German Conspiracy Trial.
More recently, the nation's largest and busiest federal appeals court has been the scene of a more decorous -- albeit still intense -- battle between conservative and liberal jurists over civil rights, immigration, the death penalty and criminal law.
Conservatives have been gaining sway over a court that for many years was widely perceived as one of the country's last bastions of judicial liberalism. Now, President Obama is about to start putting his stamp on the court, which is the last word on most federal legal issues in California and eight other Western states from Hawaii to Montana and Arizona to Alaska. Two judgeships are vacant, a third will come open next year, and a bill in Congress could add six positions to the court, boosting the number of active judges to 35.
Depending on the nature of Obama's appointees, they could arrest a conservative trend on the massive court, a shift that Chief Judge Alex Kozinski calls the "regression to the mean" -- a move toward what he sees as the national judicial mainstream.
That more conservative shift is one that Judge Stephen Reinhardt, one of the court's most prominent liberals, laments as an erosion of jurisprudence's human element.
"Judges have to have empathy. The law is not something you look up in a book and find the answer. If it was, we wouldn't need judges," said Reinhardt, who is critical of what he considers an overly "proceduralist" approach by some colleagues.
Indeed, it is the effective use of a once little-used procedure -- along with seven judges named by President George W. Bush -- that has allowed conservative jurists to gain influence on the court.
The circuit courts have their own appeals process, known as an "en banc" rehearing, in which 11 judges can take up a case after a three-judge panel has already decided it. A court's active judges vote in secret to grant or deny a rehearing. If a rehearing is denied, a judge may write a dissent from denial.
Experts inside and outside the court say the conservatives have effectively used those dissents as a signal flare to the U.S. Supreme Court. The maneuver is used almost exclusively at the 9th Circuit.
"The en banc process is a mechanism for correcting panel opinions," said Kozinski, noting that with 48 judges available across the political spectrum, "it is entirely possible you'll get an outlier opinion from a three-judge panel."
Out of the 13,000 cases the 9th Circuit disposes of in a typical year, judges write dissents from denial on no more than a few dozen, with the Supreme Court taking up just a handful of those.
The 9th Circuit these days is no more likely to be overturned by the Supreme Court than are other appellate courts, judicial statistics show. But the cases the high court does take, which often involve weighty constitutional matters, have the potential to fundamentally change the interpretation of federal law.
Judge Consuelo M. Callahan, named to the court in 2003, said she believes dissent-from-denial opinions are an effective tool.
"I've heard from Justice [Anthony] Kennedy that they do look at dissents from denial, that it doesn't go unnoticed how many people signed," she said of the high court's radar.
Shaun Martin, a University of San Diego law professor and veteran appeals court analyst, believes the conservatives appointed by Bush to the 9th Circuit are especially active in calling cases to the Supreme Court's attention that offer an opportunity to undo some of the liberal judicial policymaking of the 1960s. The 9th Circuit has issued a number of decisions -- known to stick in the craw of conservatives -- that strengthened the rights of criminal suspects.
Bush's appointees insist they don't have marching orders from Washington to advance any high-court agenda -- or the intent to do so.
Judge Sandra S. Ikuta, a frequent dissent-from-denial author appointed by Bush in 2006, said she was assigned simply "to do a good job and to follow the law."
One of the conservatives, Judge Jay S. Bybee, when he was an assistant attorney general, helped write memos guiding the CIA on how far it could go in using extreme torture while interrogating prisoners, according to Justice Department documents Obama released last week.
Some judges see the Supreme Court's inclination to review cases from the 9th Circuit as a judicial wrist slap for failing to fix its own legal misreads.
"I think a court has to be consistent in its rulings, which is why I put so much time and effort into the en banc process," said Judge Diarmuid F. O'Scannlain, just behind Kozinski as the longest-serving active judge among the conservatives. "We're not doing as good a job as we should be doing in correcting internal inconsistencies."
Called on to cite a few examples of recent decisions that needed correcting, O'Scannlain, with an I'm-glad-you-asked-that flourish, whipped out a list of 15 circuit cases from the last three years, all of which he had a role in bringing to the high court's attention.
In U.S. vs. Ressam, the Supreme Court tossed out a 9th Circuit decision to vacate the sentence of the "Millennium Bomber," who had targeted Los Angeles International Airport. In Waddington vs. Sarausad, the 9th Circuit overturned a gang member's murder conviction, citing ambiguous jury instructions; in January the Supreme Court reversed the 9th Circuit.
In cases involving warrantless wiretapping, the reliability of DNA evidence and the government's right to maintain a cross on public land in the Mojave Desert, final decisions are pending.
Most of the 70-odd cases the high court reviews each term pique the justices' interest because they involve a key and contentious point of law, such as church-state separation or the rights of defendants.
"They typically don't take your case to say, 'You did a great job!' " Molly C. Dwyer, clerk of the court, said of the high court's 75% reversal rate across the 13 circuits.
Reinhardt, 78, conceded the 9th Circuit remains the nation's most liberal -- which, he added, "isn't saying much" considering the judiciary's shift to the right during Bush's presidency. Bush appointed 328 judges nationwide, replacing more than a third of the federal judiciary and leaving most circuits with majority-Republican appointees.
"The Republican right cares more about the courts than anything else," Reinhardt said of what he considers highly ideological choices since the mid-1990s. "That hasn't happened with Democratic presidents. Clinton had more appointments than Bush, but half of them were conservatives."
While the court has a number of strongly liberal or conservative judges, its center is sparsely populated, according to the confidential ratings of judges from both ends of the spectrum and lawyers who appear before them.
Kozinski, a libertarian, often sides with his more liberal colleagues on 1st Amendment issues, and Clinton appointees A. Wallace Tashima and Ronald M. Gould can also be ideological switch-hitters, according to their colleagues.
"I don't have a legal mission. My mission is to decide cases," said Judge Barry G. Silverman, one of Clinton's more centrist appointees. To be advancing a president's agenda "would be like asking an umpire if we can have more strikeouts today. I just call 'em like I see 'em."
Still, conservative legal analysts insist the 9th Circuit's track record and enduring image as left of the mainstream have created deformities in the justice system, such as "forum shopping" by plaintiffs.
Anna Nicole Smith's claim to triple-digit millions from the estate of her late husband, J. Howard Marshall, was hijacked from Texas to 9th Circuit jurisdiction through her filing with a federal bankruptcy court in Los Angeles, contends law professor Horace Cooper, a former Bush administration official who's now a senior fellow at the Institute for Liberty.
"I don't want a bankruptcy judge in L.A. to determine what Texas probate law is," Cooper said.
Beyond the highly charged ideological issues, the 9th Circuit's importance in the judicial system also reflects the cutting-edge intellectual property issues emanating from places such as Silicon Valley and Seattle, the preponderance of immigration cases in the Southwest, the backlog of death penalty appeals, and the sheer numbers of people, businesses and cultural and religious entities in the region.
In some judges' view, the circuit's vastness has its upside. Scattered among 17 cities, the randomly selected panels rotate among the venues, exposing judges to the diversity of the West's problems and issues.
On the road, most judges dine together on the first night of their weeklong panels. Despite the ideological gaps, the gatherings are described by all as convivial.
But appearances can be deceiving.
Judge Carlos T. Bea knowingly observed of the amicable atmosphere in which the strange bedfellows of the court conduct their business: "Don't mistake the necessary lubricant of civilization -- good manners -- with friendship."
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