Conservatives gaining sway on a liberal bastion

Marble columns, porcelain mosaics and Venetian skylights in the palatial James R. Browning Courthouse belie the rough-and-tumble origins of the West's authoritative law court.

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.