Stanford Professor Records 9th Circuit's Oral History

Dan Levine

The Recorder

Stanford law professor Michele Landis Dauber got a front-row seat on the workings of the 9th U.S. Circuit Court of Appeals 10 years ago at the feet of Judge Stephen Reinhardt. She was his law clerk.

Now she's learning all about the court from Reinhardt once again, but from a decidedly different vantage point.

Dauber has volunteered to take Reinhardt's oral history. She is one of a corps of lawyers and professors who donate essential sweat equity to the Ninth Judicial Circuit Historical Society's Oral History Program. That group has collected more than 150 interviews from judges across the circuit. They include both district court and circuit judges.

The professor has embarked on a series of two-hour sessions with Reinhardt, squeezed into court breaks, questioning him on his political life before joining the bench, such as his high-level participation in Robert F. Kennedy's 1968 California presidential campaign. She is also inquiring about some behind-the-scenes details of just what happened in some of his more controversial rulings, on subjects like the right to die and capital punishment.

But Dauber hopes to go beyond just giving a flavor of what it's like to be a judge. The professor wants to explore the 9th Circuit as an institution, at a time that it went from a sleepy court far removed from the segregation battles of the South to becoming a lightning rod in American politics.

Starting with Reinhardt, Dauber hopes to explore a thesis via interviews with other appointees from late in Jimmy Carter's administration: that the judges who became such a target for American conservatives in the 1980s and 1990s actually weren't bomb throwers at all. They were establishment lawyers who understood the law from a certain point of view.

"What happened was the ground shifted under them," Dauber said. "And that thrust the 9th Circuit into this spotlight, not because these people were radical but because the political economy of the country was really moving."

The professor would also like to interview Reagan appointees for their perspective on the circuit at the time it became such a controversial institution, much more so than other appeals courts.

"People in Maine know about the 9th Circuit. That's weird," Dauber said. "No one in California knows anything about the 1st Circuit."

TRY, TRY AGAIN

Unfortunately, Reinhardt's oral history may not become public for a while. Dauber and the judge haven't yet agreed on terms, but, in general, the project's oral histories remain private until a judge steps down or passes away. That policy makes judges more comfortable in sharing their unvarnished thoughts.

Reinhardt had given an oral history for the project a few years ago, which is public, but he decided to try it again.

"I thought I had been overly careful and less than totally candid in it, and when I thought about it, there wasn't much point in doing something like that," said Reinhardt, 76. "If I were going to have one, I should do one that's more honest."

A few sitting senior circuit and district justices have made their oral histories available to the public. Those narratives give a flavor of the personal and professional tidbits that can show up.

For instance, Senior U.S. District Judge William Schwarzer, who was interviewed in 1997, speaks vividly about fleeing Nazi Germany with his family in 1938, just before Kristallnacht. He landed in Los Angeles, a boy speaking broken English.

Stories surrounding judges' appointments are always good fodder for oral historians. Schwarzer, a Ford appointee, said he voted more for Democrats than Republicans. But when a friend in Mill Valley, Calif., ran for the county's board of supervisors in the 1960s, Schwarzer and his wife registered Republican to give him two more votes in a contested primary.

They never changed their registration. So when political operatives did background checks on him, he came back a Republican, making it OK for Ford to appoint him.

Senior 9th Circuit Judge Dorothy Nelson spent several years as dean of USC's law school before joining the court. But in her oral history she describes debilitating stress headaches as a first-year law student because her grades were terrible. She almost quit, but one of her professors talked her out of it.

On the 9th Circuit, Nelson's first conference involved a complicated Indian rights case. The panel's presiding judge assigned her to write it, but she nervously asked her colleagues to spell out their thoughts so she could get them right.

"And he said to me, 'Well, are you for the Indians or against the Indians?'"

For the Indians, she said.

"'Fine, write it that way.'"