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1 US COURT of APPEALS for the NINTH CIRCUIT Judicial Profile U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT Judicial Profile: Carlos Bea COURT: Ninth Circuit U.S. Court of Appeals APPOINTED: 2003, by President George W. Bush BORN: April 18, 1934 LAW SCHOOL: Stanford Law School PREVIOUS EXPERIENCE: San Francisco Superior Court Bench, 1990-2003 After long wait, Bea ascends federal bench Jason Hoppin The Recorder November 18, 2003 Carlos Bea can breathe a little bit easier now. Not only are his chambers in the Ninth Circuit U.S. Court of Appeals much larger than his old haunt at the San Francisco Superior Court, but he no longer has to wonder what kind of federal judge he'd have made. He's about to find out. The longtime litigator and dedicated Republican had been on the superior court a little more than a year when the first President Bush tapped him for the Northern District federal bench. His nomination died without a hearing, however, and Bea waited a decade before being offered his current post. The former Olympian is still fit at 69 years old. The white hair, dark complexion and crisp shirts project the dignity of an ambassador. Bea seems to fit right in at the beaux-arts Ninth Circuit headquarters on Seventh and Mission streets. His enormous office is decorated with paintings from his personal collection -- portraits and scenes painted in a classical style. Weathered antiques have been imported in a feeble attempt to fill the cavernous space. On the superior court, Bea required decorum in the courtroom. Some lawyers say he can come across as imperious. Maybe, but most agree he also features a sense of humor that he's not afraid to show. His reputation on the superior court bench was generally good. He handled complex litigation, including two closely watched cases over the use of the gasoline additive MTBE. After months at trial, one of the cases settled for nearly $70 million. In perhaps his most famous order, he issued an injunction prohibiting an employee of Avis Rent- a-Car from making derogatory remarks to or about Latino co-workers. A bitterly divided California Supreme Court upheld the decision over objections that the ruling improperly enjoined speech. 1 Bea faced resistance the first time he was nominated, in part over a series of newspaper articles detailing how he benefited from a minority-owned business enterprise (Bea's parents are Cuban). But his nomination sailed through this time without so much as a Congressional peep, despite partisan rancor over some of President Bush's judicial choices. Not one senator voted against him. "I got a hearing this time," Bea says. "In 1992, I went 14, 15 months without a hearing." Bea was sworn in recently during a quiet ceremony (a larger investiture will come later) and has been assigned some cases. He'll likely hear his first arguments in January. "I think he'll do fine because he's a real intellect," said Sedgwick, Detert, Moran & Arnold partner Stephen Jones, who has litigated before Bea. "I think it's a new challenge for him." Bea will have to change more than just his stationery. As an appellate judge, he'll be on the bench a lot less. "I undoubtedly will miss trials," Bea said. "But I think about the excitement in the kind of cases that are heard here." What he'll bring to his new colleagues is recent trial court experience. Bea sees that as valuable, recognizing that appeal court judges rely on the record developed below. Bea was born in San Sebastian, Spain, a coastal city in the northern Basque country. His parents moved to Cuba when he was young, and then to the United States. He attended Stanford University (for both his bachelor's and law school degrees). In 1952, he played for the Cuban Olympic basketball team. He spent more than 30 years as a litigator in San Francisco, mostly at his own firm, before he was tapped for the superior court in 1990. Though he is considered conservative (especially by San Francisco standards), rulings like the Avis Rent-A-Car injunction mark him as one of President Bush's more moderate picks. Bea's nomination had the support of La Raza Lawyers and the Mexican-American Legal Defense and Education Fund. He was opposed by the National Organization of Women, and other groups said he leaned too far toward business. But those criticisms didn't take hold. The only Senate Judiciary Committee member to show up for his hearing was the chairman, Orrin Hatch, R-Utah. Making Bea's formal introduction to the committee was Sen. Barbara Boxer, D-Calif. His nomination was quickly sent to the Senate floor, where he was unanimously confirmed. Bea says he's looking forward to hearing his first argument as a federal judge. 2 "I think oral argument is very important because it gives the attorney an opportunity to have in insight into what the judges think is important," Bea said. "I've never been bored practicing law -- not for one day," he said. "I've been tired, I've been angry, but I've never been bored." 3 Judicial Profile: Marsha Berzon Court: Ninth Circuit U.S. Court of Appeals APPOINTED: By President Clinton, Confirmed March 9, 2001 DATE OF BIRTH: April 17, 1945 LAW SCHOOL: Boalt Hall, 1973 PREVIOUS JUDICIAL EXPERIENCE: None Jason Hoppin The Recorder January 25, 2005 Marsha Berzon's ascension to the Ninth Circuit was overshadowed by the longer and more rancorous battle over her colleague, Judge Richard Paez. Both were finally confirmed after lengthy confirmation processes that descended into partisan politics. Both were attacked as liberal, but after a lengthy floor hearing in the Senate, Berzon was confirmed by a 64-34 vote. Sen. Barbara Boxer, D-Calif., later presented her with the official Senate tally sheet as a gift. While her confirmation slipped about as far under the radar as possible for someone who waited two years for the event, her work since then has set her head and shoulders above any other Clinton nominee confirmed late in the former president's tenure. It took Berzon less than sixth months to get her first published opinion out the door, a key decision on Indian gaming which came out on Aug. 23, 2000. Paez, who had unfinished business on the Los Angeles federal bench to take care of, didn't publish his first opinion until earlier this year. Berzon has authored 23 opinions, which places her among the court's most prodigious scribes. It is a remarkable record for a first-year judge. Paez has inked 13 decisions since he received his commission. Judge Richard Tallman, who came on the bench two months after Berzon, has written 11. Judge Johnnie Rawlinson, who came to the court two months after that, has written five. Furthermore, Berzon has written four dissents, which some consider a measure of a judge's acclimation to the court. Recently, she dissented from a decision holding that the ability to use a computer is not a substantial life activity under the Americans With Disabilities Act. Some would argue that decision supports her "liberal" label. Whether that's accurate or not can be debated, but it's almost certain Berzon will never be confused with a conservative. During her confirmation process, Berzon was attacked from the right by those who objected to 4 her ties to organized labor (she was a longtime assistant general counsel to the AFL-CIO) and her association with "radical" women's causes (she argued several women's rights cases before the U.S. Supreme Court). But, like it is for most judges who survive confirmation battles, the criticism is a distant echo. "I really have not followed, in any systematic way, Judge Berzon's decisions while on the bench," said Tom Jipping of the Free Congress Foundation, once one of her harshest critics. Perhaps because of her experience arguing cases in the federal courts, Berzon questions lawyers with the confidence and vigor of a veteran. During a recent hearing over the constitutionality of IOLTA funding, Berzon appeared to show her hand by vigorously probing the defendant's case. However, she was just as Socratic in questioning the plaintiff. "She came to the court very familiar with many of the issues we deal with," said Ninth Circuit Judge Stephen Reinhardt, another prolific author. "There's no question that she's extremely well- qualified for this job." The two teamed up in a recent suit outlining protected speech to police officers. A defendant had uttered either "fuck you" or "that's fucked" to a park ranger during an arrest of another person, and was arrested for disorderly conduct. In throwing out the conviction, Reinhardt wrote that the case wasn't even close. Berzon joined him to form a 2-1 majority. Berzon was out of the country and could not be reached for comment for this article. Reinhardt offers nothing but praise for Berzon: "In a month or so, she was like a fully experienced judge," he said. He added that Berzon is active in communicating her position to other judges in conference. Her effectiveness in doing so is, perhaps, exhibited by the high number of opinions she has authored. But this much is clear: Lawyers who ignore Berzon as "the new judge" do so at their peril. 5 Judicial Profile: Jay Bybee COURT: Ninth Circuit U.S. Court of Appeals APPOINTED: March 21, 2003 DATE OF BIRTH: Oct. 27, 1953 LAW SCHOOL: J. Reuben Clark Law School at Brigham Young University PREVIOUS JUDICIAL EXPERIENCE: None Controversial past doesn't follow Bybee into courtroom Jeff Chorney The Recorder May 17, 2005 Ninth Circuit U.S.
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