ost new appellate judges concede that writing that first dissent is a tough thing to do.
But Ninth Circuit U.S. Court of Appeals Judge Susan Graber, who celebrates her first anniversary on the bench April 1, had an easier time than most bucking her new colleagues with her initial dissents, three of which she wrote this year.
"The process of writing opinions is very familiar to me," Graber said. After all, Graber spent eight years as one of the most prolific judges on the Oregon Supreme Court and two years on the Oregon Court of Appeals. In those 10 years, she wrote more than 300 opinions.
If her early circuit dissents are an indication, Graber will be the type of judge that pulls the polarized court more into the "judicial mainstream," as the court's conservative critics in Congress would have it.
"Judges, in our decisional roles, are not asked for our personal preferences about the results of the cases," she wrote last month, distancing herself from a Stephen Reinhardt-led majority. "Judicial restraint is the lifeblood of judicial independence."
It's a decidedly conservative philosophy. And it appears that the 49-year-old jurist shares an outlook closer to that of Alex Kozinski, a leading conservative on the court, than to liberal stalwart Reinhardt, especially when it comes to criminal law.
Friends say that Graber's strong law-and-order course in criminal matters might reflect the influence of a family tragedy: Her father, Julius Graber, was carjacked and murdered by two teen-agers in 1974. The two used a sawed-off shotgun to force him into the trunk of his own car. They then drove the car to a Cincinnati cemetery where 18-year-old Samuel Hall shot Graber in the back of the head.
Accomplice Willie Lee Bell, who was 16 years old at the time, was sentenced to death. But Bell's case made it to the U.S. Supreme Court, where the justices found Ohio's death penalty law unconstitutional because it failed to adequately consider mitigating circumstances.
Graber would not discuss her father's death.
But speaking generally of her judicial philosophy, she said: "My desire is to decide the cases without letting my own personal views distort the answer."
For the most part, she appears to have accomplished that and is routinely described as a dispassionate jurist who does not attempt to do "social justice" from the bench.
One trait Graber has certainly carried over from her state court days is a reputation as a workhorse. Since joining the circuit she has signed on to about two dozen published opinions, writing in nearly half of them.
"She certainly hit the ground running," said Judge Diarmuid O'Scannlain, a Portland, Ore., neighbor of Graber's who also served as her "buddy judge" during her first few weeks on the Ninth Circuit. "I don't think anyone has acclimated herself as quickly as Judge Graber has."
"She is a wonderful colleague," said O'Scannlain, who joins Kozinski as a reliably conservative voice on the circuit. "She is very conscious of the rule of an appellate court."
That is obvious in her disagreement with Reinhardt and Senior Judge Robert Boochever, which surfaced in U.S. v. Burdeau, 99 C.D.O.S. 1068.
In Burdeau, Reinhardt upheld a Native American man's conviction for armed robbery on a reservation. On appeal, the defendant argued that he should have been allowed to raise a voluntary intoxication defense -- that is, that he was too drunk to know what he was doing at the time of the crime.
Reinhardt turned down that argument, but used the occasion to blast the 17-year sentence the defendant received and take another swipe at harsh federal sentencing guidelines. In the opinion, Reinhardt delayed issuing the mandate in the case for 60 days and encouraged prosecutors to reconsider their charges and perhaps lower the sentence.
As Kozinski has done on a number of a recent occasions, Graber wrote a partial dissent. She agreed with the majority's conclusion but criticized what she viewed as extrajudicial commentary.
Graber wrote that delaying the mandate, which makes the opinion official and binding, "neglects our responsibility to decide cases promptly."
But Reinhardt got in the last word, in a footnote: "We reject the charge that we neglect our responsibility by delaying issuance of the mandate for 60 days," he wrote. "We place a far higher premium on fairness and justice than on the abstract concern over the date the mandate issues."
Meanwhile, in Marcy v. Delta Airlines, 99 C.D.O.S. 985, Graber again broke with a Reinhardt-Boochever majority opinion. This time, with Boochever writing, the majority affirmed a $66,000 wrongful discharge verdict for the Montana plaintiff. Boochever wrote that employers are still liable for wrongful discharge if the firing is done in good faith but based on mistaken facts.
But Graber said that holding is inapposite to Montana state law.
"I respectfully dissent," Graber wrote, "because the majority has departed from proper methods of statutory construction and has created an opportunity for forum-shopping in Montana wrongful termination cases."
And in McHugh v. United Service Automobile Association, 99 C.D.O.S. 162, Graber broke from Judge Harry Pregerson and Eighth Circuit Senior Judge Donald Lay, who was sitting by designation. The majority held for a homeowner suing his flood insurance carrier for bad faith over damage done by a mudslide.
Her dissent did not mince words. "The majority's opinion is inconsistent with the record, conflicts with precedent on important matters of federal law, modifies a valid federal regulation, and reaches an unjust result," she wrote.
The position she took on those cases is not surprising, according to longtime colleagues and observers. Nor, for that matter, is it a surprise for a Clinton appointee to the Ninth Circuit to be so restrained.
"Most of them are kind of moderate," observes University of Pittsburgh School of Law professor Arthur Hellman, who tracks and often writes about the Ninth Circuit.
Indeed, with the notable exception of Circuit Judge A. Wallace Tashima, who is seen as a liberal, and the expected exception of newly sworn-in Judge William Fletcher, the Clinton appointees to the Ninth Circuit have managed to chart an uncontroversial course on a court fraught with controversy.
From Clinton's first appointment, Judge Michael Daly Hawkins, to his latest nominee, Associate U.S. Attorney General Raymond Fisher, nearly all are considered middle of the road.
Graber fits right in.
"I think the left-wingers are angry with her because they had hoped she was one of them," said longtime friend Sidney Lezak, who served as the Oregon U.S. attorney from 1961 through 1982 and calls himself Graber's "Uncle Sid."
The liberals' misplaced hope that she was "one of them," Lezak said, was rooted in the stereotypical fact that Graber was an intellectual, devoutly Jewish Ivy Leaguer during the late 1960s and early 1970s. Her hair was long and she favored sandals.
It was Lezak who lured Graber, a Cincinnati native, west. In 1970, while Graber was still at Yale Law School, she worked as a summer intern in Lezak's U.S. attorney's office and the two became close.
After graduating from Yale in 1972, she took a job in New Mexico as an assistant attorney general. Three years later, after a brief stint in private practice in New Mexico, she moved back to her hometown to take a job with Taft, Stettinius & Hollister.
Growing restless in 1978, she took a trip to Portland and stayed with Lezak for a week. On the last day of her stay, on the spur of the moment, Lezak arranged for an interview with a partner at Stoel, Rives, Boley, Jones & Grey, one of the largest firms in Portland. She accepted a job soon after.
By 1981 she had made partner, and seven years later, using the many friendships and legal connections she had made, she was appointed to the Oregon Court of Appeals.
There, she established herself as a hard-working jurist noted both for her willingness to take on the chore of writing opinions and her conservative tilt.
"She was not what we considered our best friend on the court," says Oregon State Deputy Public Defender David Groom. "She was definitely 'tough on crime.'"
At the same time, Graber was viewed as among the smartest of the justices. Groom said he always prepared himself to answer what he calls the "Graber question" at oral arguments.
"The Graber question invariably cut to the heart of the issue," Groom said. "She would always ask the most penetrating questions."
But to be sure, no one has accused Graber of being a "zealot," as the left-leaning Lezak characterizes the ultra-right wing of the Republican Party.
Groom said he was particularly impressed that while Graber's Ninth Circuit nomination was pending before the U.S. Senate, she wrote a majority opinion that reversed the conviction and death penalty of a triple murderer based on prejudicial evidence introduced at trial. Graber ordered a new trial, which is pending.
However, as Graber told the Senate Judiciary Committee at her Feb. 25, 1998, confirmation hearing, she supports the death penalty. She affirmed the sentences of two Oregon inmates who were executed while she was on the state Supreme Court.
If Graber is hardly the stereotypical daughter of the '60s, neither are three other prominent women who, like her, graduated from Wellesley in 1969 and went on to Yale Law School: first lady Hillary Clinton; Nancy Gist, director of the Department of Justice's Bureau of Justice Assistance; and Oregon U.S. Attorney Kristine Olsen, who is still a close friend to Graber.
During her Senate Judiciary Committee confirmation hearing, Sen. Jeff Sessions, R-Ala., asked Graber: "Are you a member of the American Civil Liberties Union or have you ever been?"
Graber replied that she "was for a short time, probably in the early 1980s for a short while."
To which Sessions asked her if she agreed with all of the ACLU's views.
But before Graber could answer, Sen. Patrick Leahy, D-Vt., came to the rescue.
To "ask her whether she ascribes to everything in any organization, I think, goes beyond the scope of these hearings," Leahy said.
"Well, there is not enough time to discuss it," Sessions said. "I withdraw it."
And with that, Graber passed out of committee and, in the end, won support from both sides of the aisle. She was confirmed 98-0 by the full Senate.
"Justice Graber has garnered praise from the bench and bar as being the epitome of a careful and non-ideological judge whose centrist approach has helped promote a consensus-building and collegial atmosphere on this important court," Sen. Ron Wyden, D-Ore., told his colleagues before the confirmation vote. "She knows the role of a judge is to follow, not make the law, and that is exactly what we need on the federal appellate bench."
