Larger Panel Draws From Conservative Side of Court

The 11 judges who will decide whether California’s Oct. 7 recall election should be postponed represent the conservative to moderate part of the U.S. 9th Circuit Court of Appeals, legal scholars said Friday.

Chief Judge Mary M. Schroeder will head the panel. The other 10 members are judges Alex Kozinski, Diarmuid F. O’Scannlain, Andrew J. Kleinfeld, A. Wallace Tashima, Barry G. Silverman, Susan P. Graber, M. Margaret McKeown, Ronald M. Gould, Richard C. Tallman and Johnnie B. Rawlinson.

Unlike the liberal three-member panel that ruled the election should be postponed, the larger group reflects “the conservative wing” of the 9th Circuit, said UC Berkeley emeritus law professor Stephen Barnett.

“This is as much a bonanza for the pro-recall people as the three-judge panel [that blocked the election] was for the anti-recall people,” he said.

Ten of the judges on the en banc panel were chosen by random to hear arguments Monday on whether the election can proceed. Schroeder, as chief judge, sits on every en banc panel.

The three-judge panel that voted against holding the Oct. 7 election consisted of Harry Pregerson and Richard Paez -- who are considered liberal jurists -- and Sidney Thomas, a moderate. All are Democrats. The larger group that will hear the appeal contains some of the most conservative judges in the circuit.

“It just shows the coin has two sides and if you flip again, you get something entirely different,” Barnett said.

Eight of the 11 judges were appointed by Democrats, seven of them by former President Clinton.

“Clinton appointees are generally moderate but some are quite conservative,” said Gerald Uelmen, a law professor at the University of Santa Clara. “The draw seems to have zeroed in on a number of the more conservative Clinton appointees.”

Schroeder, appointed by former President Carter, is a moderate to liberal Democrat. As chief judge, Schroeder has had to defend the circuit against charges that it is overly liberal and fight efforts by congressional conservatives to split it up.

Appointed to the 9th Circuit in 1979, Schroeder is described as a solid, intelligent judge who is trying to steer the court away from controversy and its reputation as the circuit whose decisions are more likely to be reversed by the U.S. Supreme Court than others.

“I want to address the role of the 9th Circuit as the largest circuit in the nation and go from a defensive position to a leadership role” she told the Daily Journal, a legal newspaper in Los Angeles, when she was appointed to head the circuit.

O’Scannlain, 66, and Kleinfeld, 58, are considered among the most conservative members of the 9th Circuit.

O’Scannlain, a Republican appointed by former President Reagan, once ran for a congressional seat in Oregon and lost.

The son of Irish immigrants, O’Scannlain attended Harvard Law School and later practiced administrative and corporate law. He has been the leading advocate on the court for splitting the circuit.

Kleinfeld, who was appointed by former President Bush, previously served as a federal trial judge in Alaska. He is a conservative with a libertarian bent.

In one death penalty case, Kleinfeld voted to uphold a death sentence for an accused killer but -- as a member of en banc panel hearing an appeal of his earlier decision -- voted to overturn the death penalty.

Kozinski, 53, is considered a maverick conservative with a libertarian streak. He is well regarded by both liberals and conservatives. Liberals expected Kozinski, a Reagan appointee, to rule on the right on many issues.

But he has surprised his critics with his rulings, including some that have championed the rights of criminal defendants and gays.

Until he was 12, Kozinski lived under a repressive communist regime in Romania, where he learned to distrust government, he has said.

He has described himself as “liberal” on 1st Amendment freedom of speech issues, but he rules on the conservative side in property rights cases.

Kozinski is skeptical of government regulations that interfere with the use of private property.

Kozinski also is considered one of the best writers on the court.

Gould, Graber, Tallman, Silverman and Rawlinson are all Clinton appointees who are described as moderate to conservative.

Gould, 57, came to the circuit from a large civil law practice in Seattle.

In an interview three years ago, Gould said he would follow the law even if it would produce an unfair result.

“If the law requires a particular result, I would certainly be required to follow the law. Even if I was not certain, I would follow the law,” Gould told the Daily Journal.

“But before that, I would make sure there was not an exception to an unjust law.”

Graber, also a centrist, formerly served as a justice on the Oregon Supreme Court. She is a longtime friend of Hillary Rodham Clinton. Graber, 54, tends to side with prosecutors in criminal cases.

She issued a major decision in favor of a California law to help Holocaust victims that the U.S. Supreme Court later overturned.

Tallman, a Republican, practiced commercial litigation and worked both as a federal prosecutor and a criminal defense lawyer.

Practicing in Seattle, Tallman occasionally supported moderate Republicans for office.

Silverman, a 52-year-old former prosecutor, went to the 9th Circuit after having worked as a federal magistrate in Arizona.

Rawlinson, 54, also is a former prosecutor who is conservative on criminal justice cases.

Last month, an 11-judge panel of the court overturned more than 100 death sentences in several Western states because the inmates had been sentenced by judges rather than juries.

Rawlinson dissented.

McKeown, 52, and Tashima, both Clinton appointees, have reputations for being more liberal than the others in the group. Suspicious conservatives in the Senate held up McKeown’s confirmation for more than two years.

Once confirmed, McKeown became a moderate to liberal voice on the court.

She previously was a partner in a large private practice in Seattle, where she specialized in intellectual property law and complex litigation. Many of her clients were large corporations.

But conservatives were uneasy about some of her free legal work for the poor. In one case, she represented a criminal defendant who was unable to obtain a transcript of his trial from a court reporter.

She filed a civil rights lawsuit on the defendant’s behalf that went to the U.S. Supreme Court. Her client won.

Tashima was a federal judge in Los Angeles and spent his life there except for a three-year period when he and his family were interned during World War II because they were Japanese Americans.

Tashima previously was a civil litigator in a major law firm. He is considered liberal on free speech issues, but more conservative on business litigation.

*

(BEGIN TEXT OF INFOBOX)

Next steps in the recall case

* Eleven judges of the U.S. 9th Circuit Court of Appeals will hear arguments Monday on whether to allow the recall election to proceed on Oct. 7.

Court sources believe the judges will issue a ruling within days.

Whichever side loses in the Court of Appeals could take the case to the U.S. Supreme Court, but the Supreme Court is not required to consider it.

*

The judges

The judges who will hear arguments in the California recall case, with their appointment dates:

Ronald M. Gould

Appointed by President Clinton

Jan. 1, 2000

Susan P. Graber

Appointed by President Clinton

April 1, 1998

Andrew J. Kleinfeld

Appointed by President Bush

Sept. 16, 1991

Alex Kozinski

Appointed by President Reagan

Nov. 7, 1985

M. Margaret McKeown

Appointed by President Clinton

April 1, 1998

Diarmuid F. O’Scannlain

Appointed by President Reagan

Sept. 1, 1986

Johnnie B. Rawlinson

Appointed by President Clinton

July 2000

Mary M. Schroeder

Appointed by President Carter

Sept. 25, 1979

Chief Circuit Judge -- 2001 to present

Barry G. Silverman

Appointed by President Clinton

Feb. 6, 1998

Richard C. Tallman

Appointed by President Clinton

June 30, 2000

A. Wallace Tashima

Appointed by President Clinton

Jan. 2, 1996

Source: The American Bench-2002/2003

Los Angeles Times