9th circuit seal ninth circuit.JPGThe Ninth Circuit may be getting slapped around by the Supreme Court lately. (Yeah, what else is new.) But they continue to go about their business. Keep on truckin’, Your Honors!
One of you was kind enough to attend a recent Ninth Circuit sitting — not just any old sitting, but the one graced by that judicial celebrity, Justice Sandra Day O’Connor — and send us a detailed report.
That account of the oral argument — plus a bonus judicial sight-ation, and some added commentary from us — appears after the jump.


From a loyal reader, to whom we’re very grateful for this eyewitness account:

I attended oral argument in the Ninth Circuit last Friday, October 20, 2006 when Justice O’Connor was sitting by designation on a panel with Judge Pamela Ann Rymer and Judge Sidney Thomas. Here’s my review of the proceedings.

A little background about Justice O’Connor’s fellow panelists. Judge Pam Rymer: very smart, right-of-center, but not ideological; not a “buddy” judge to her clerks, and quite secretive about her private life; likes to play tennis and collect decorative frogs.
Judge Sid Thomas: also very smart, but very liberal; could be a future leader of the Ninth Circuit’s liberal wing (after Judge Reinhardt passes the mantle); friendly with his clerks, sometimes even going out for drinks with them; a very nice man; his beard could use a little judicious trimming.
Okay, back to business:

I showed up at the courthouse around 8:15 a.m. (proceedings were slated to start at 9:00 a.m.). Eating my breakfast of a coffee and banana on Mission Street, I happened to see Judge Diarmuid O’Scannlain, getting dropped off at the side entrance by a taxi.

Ooh, exciting! Judge O’Scannlain is our former boss.

He was wearing a checkered tweed jacket and khaki slacks. We didn’t stop and talk (I met him once in law school, but there is ZERO chance he would remember me). He pulled out his card key and in to the building he went. Not too descriptive I realize, but isn’t any any sighting of an Article III judge, no matter how brief, just like manna from heaven?

So true! And the sartorial description sounds about right — Judge O’Scannlain dresses very tastefully, but he can be a bit on the staid side. (His wife, Mrs. Maura O’Scannlain, is far more stylish.)

So the proceedings began, and the first case was an immigration asylum case. The counsel for the appellant, whom I shall not name, was unfortunately ill-prepared and hadn’t thought through his argument. He kept on saying “I really think” when presenting his argument, and all that was running through my mind was a scene from the movie The Castle, where stammering counsel presents his argument to the Court by saying things like “It’s the just the unconstitutional vibe of the thing.”

Mortifying. And most unlike the Second Circuit lawyers who recently argued before Justice O’Connor, who said they prepared “extra hard” because of SOC’s presence.

Justice O’Connor, I had read, was slightly taciturn in her appearances at the Second Circuit and her prior day of oral argument at the Ninth. Not so today. She pointedly asked counsel for appellant, “What outcome determinative evidence do you claim the ALJ prevented your side from introducing?” Counsel didn’t have a good response.

Ouch. But it’s great that Justice O’Connor was so engaged, despite the less-than-scintillating nature of the case — a far cry from the high-profile, sexy cases she used to hear on the Court.
Things didn’t improve with the next item up for bids:

Second case had to do with a bankruptcy court’s order quieting title to a certain road at or near Sedona Golf Course in Arizona. Judge Rymer asked counsel for appellant a factual question about the evidence introduced below, to which the attorney kept on giving a response about his legal theory why he should win. Justice O’Connor piped in and said pointedly “Counsel, you’re not understanding the question.”

Counsel then wet his trousers and asked to be excused.

They go on a break before they hear the last two cases. I noticed Judge Rymer came back from the break with her judicial robe open (she was fully clothed, of course, in a very nice grey blouse). I wondered: Is this her usual judicial style of leaving the robe open, or is this like a man forgetting to zip up after taking a break in the proceedings to use the little boys’ room?

HA!!! Good question. Can any former Rymer clerks enlighten us? There’s something vaguely sexy, in a Memoirs of a Geisha sort of way, about coming out onto the bench with one’s robe partly open.
(We continue to urge the producers of Project Runway to have a “judicial robe design challenge” in their next season, with the charismatic Judge Alex Kozinski as the guest judge.)

The third case had to do with the ATF sending a letter to a gun store requesting information about their gun sales and whether this conflicts with federal law. In a case with similar facts, the Fourth Circuit said “no.” A slightly strange moment emerged when Justice O’Connor said to counsel, “Shouldn’t we avoid creating a circuit split on this issue?”

Interesting! Sounds like someone’s afraid of getting reversed by the folks upstairs.

The final case had to do with an appeal of a suppression order by the District Court of certain evidence of child pornography possessed by the defendant. The whole question revolved around when you have probable cause to search the computer of someone you know has been sent and received child pornography, but you don’t know if that person has “knowingly” received the emails as opposed to deleting spam. Apparently, the defendant was already in possession of legal adult gay pornography, but his name surfaced when authorities were investigating two other distributors of child pornography.

The Federal Public Defender got off the best line of the day when discussing emails received by her client from someone with the screen name of “Young Bottom 117.” The FPD said: “I will grant, Your Honors, that is not an innocuous email address.”

Heh. He should have used Maf54 instead.

All in all, it was a terrific learning experience. Judge Thomas has a tendency to rest his chin on his hand when he speaks, which makes his elocution sometimes spotty. Judge Rymer is one sharp cookie and treated the attorneys before her very respectfully. Justice O’Connor was just like her old self on the Supreme Court, asking pointed questions of counsel, and not brooking any nonsense answers from slippery lawyers.

Maybe it will appear on C-SPAN and your readers can verify these facts for themselves?

Quite possibly. But given the detailed nature of this write-up, we have a high degree of confidence in the accuracy of the account. We thank this correspondent for taking the time to share his insights and observations.


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