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Court: 9th U.S. Circuit Court of Appeals Appointed: 1998, by President Clinton Date of Birth: 1954 Previous Judicial Experience: Central District of California Law Degree: UCLA School of Law Kim McLane Wardlaw worked closely with both former President Bill Clinton, a Democrat, and former Los Angeles Mayor Richard Riordan, a Republican. It is telling that both politicians were accused by members of their own party as gravitating toward the opposition. While it is perhaps not prudent to compare politicians to judges, Wardlaw shares something with both men: She is comfortable holding views that are not in lockstep with the expectations of prevailing wisdom. Put another way, Judge Wardlaw can be unpredictable. The Clinton appointee has a wicked curveball. Although her pedigree is that of a California Democrat, since joining the Ninth Circuit U.S. Court of Appeals in 1998, on some issues Wardlaw marches to her own drum. She dissented from a decision not to rehear a case striking down a law banning the virtual depiction of child pornography — in other words, pornography that uses models who appear underage but are not. “The distinction between ‘actual’ child pornography — unprotected speech — and ‘virtual’ child pornography — speech so highly regarded by [the three-judge panel] that it afforded it the highest level of judicial review — should have been more closely scrutinized by our court,” Wardlaw wrote. Although the Ninth Circuit passed on a rehearing, the Supreme Court didn’t, putting the case on this year’s calendar after the government appealed. Last week the justices heard arguments in Ashcroft v. Free Speech Coalition, 00-795, although the court seemed skeptical of the government’s position. Wardlaw also dissented from a decision to let stand a 21-level sentencing departure for a woman convicted of attempting to murder her husband, suggesting she believed that Brenda Working got off easy because she was a woman. Facing more than seven years, Working was sentenced to one day. She also has issued decisions more typical of her pedigree, dissenting from the denial of executed killer Darrell Rich’s request for a Native American last rites ceremony; holding that an autistic child was denied an appropriate education because school officials failed to notify her parents early enough that she may have a disability; and recently writing for an en banc panel that a suspect’s pre-Miranda silence is inadmissible as demeanor evidence in a drug trafficking case. While slight of stature and voice, Wardlaw can make herself heard. During one recent oral argument, she repeated a question to a lawyer, who tried to move on without answering. As he veered, Wardlaw brought him back to reality. “Hello!” she barked. “If I ask a question on the bench it’s probably pretty determinative,” said Wardlaw, who draws up her questions in preparation for oral argument. “If I ask a lawyer a question, I want him to answer it.” She warns against reading too much into her questions. “Sometimes lawyers take my questions the wrong way,” she said. “They think I’m going to rule against them when I’m not.” And she has a request: Don’t waste time. “If you’ve run out of things to say or you think you’ve won, sit down,” she said. While like any other judge Wardlaw expects lawyers to be prepared, she perhaps goes further. She wants them to “know the appropriate law better than I do.” She says she can be swayed by oral argument but will usually make up her mind about a case during the court’s post-argument conferences. Those who have appeared before her verify that Wardlaw has high expectations. “The lawyer better know what they’re talking about or they’re going to get shown up,” said John Burton, a Pasadena lawyer who won an important case holding that county sheriffs in charge of a jail are not officers of the state, and are therefore subject to federal civil rights liability. Burton said he initially thought Wardlaw didn’t go far enough in issuing the decision in his case, opting for a narrowly tailored opinion when she could have gone further. His first impression, he said, was that it was “kind of shabby.” But then, Burton said, his opposing counsel filed for certiorari. “And I realized it was a very good opinion. She wrote an opinion that was very easy to defend,” Burton said. While not discussing that case specifically, Wardlaw agreed that she’ll narrowly tailor her opinions. “I’m trying to decide the case before me, not the next case that comes along.” Wardlaw, who sits in Pasadena, has also lobbied for more court activities there, where a plurality of its judges sit. In December, the Ninth Circuit will hear an en banc case outside of San Francisco for the first time — in Pasadena. She was also given the honor of asking questions of Supreme Court justices at this year’s circuit conference, and is very involved with court committees. Todd True, a lawyer with Earthjustice Legal Defense Fund in Seattle — who argued a case over power plants along the McKenzie River in Oregon involving a nexus of environmental law, administrative law and the Federal Powers Act — said, “I think anybody that’s got an appeal in front of her is going to have a judge they’re going to feel like is paying attention and understands what’s going on and is focused on the issues.”

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