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Court: 9th U.S. Circuit Court of AppealsAge: 48Nominated: 1996, by President ClintonLaw School: University of Montana School of LawSidney Thomas, Montana born and bred, was an enigma coming to the 9th U.S. Circuit Court of Appeals.But in his six-plus years on the bench, Thomas has proven to be much like other 9th Circuit judges appointed by President Clinton — essentially moderate, enough so to have won the patronage of conservative Sen. Conrad Burns, R-Mont., one of the court’s most strident critics, during his confirmation hearing.Thomas has gone on to cut a judicial path slightly left-of-center, a course to which he is not always tethered. He is described as intellectual, well grounded and almost impossible to rile.“I just thought he was exactly what I would have wanted in a judge,” said University of Southern California law professor Erwin Chemerinsky, who argued a case before Thomas last year and frequently appears before the 9th Circuit.Thomas, who sits in Billings, Mont., had no judicial experience before coming to the 9th Circuit. He spent nearly two decades in Montana as a civil litigator practicing in a variety of fields — from torts to antitrust to media law — before being nominated by President Clinton in 1996.Like most judges, Thomas said he prefers briefs to be succinct, but he also suggests they include illustrations — charts, graphs, photographs, etc. — when appropriate.“It’s fairly easy to put into briefs these days,” Thomas said. “I think in the appropriate case it’s effective.”He said oral arguments can sway him and help clarify issues.“They make quite a bit of difference. I would say particularly if some aspects of the record are unclear,” Thomas said. “Oral arguments can help put the case in context.”Although Thomas said he doesn’t come prepared with questions and will hear out lawyers, he will come into court with issues he wants addressed.“I think [lawyers] need to address the points they need to make to win. But more importantly, I think they need to listen to the questions the judges are asking,” he said.In 2000, Thomas held that cities couldn’t force AT&T to open up its cable lines to high-speed Internet access competitors. But Thomas’ decision was characteristically tempered, expressly refusing to do what some activists wanted him to do: declare the court’s position on the movement to require open access to the Internet infrastructure.“Like Heraclitus at the river, we address the Internet aware that courts are ill-suited to fix its flow,” Thomas wrote.Although in that case Thomas rejected the populist argument and sided with business, he has also decided cases more in line with his Democratic pedigree. He sided with the court’s more liberal members in the controversial, and ultimately unsuccessful, battle to stay the execution of convicted California killer Tommy Thompson.He also penned the 9th Circuit decision striking down a law banning the pornographic depiction of what appears to be children, even if the subjects themselves aren’t minors. That decision was upheld by the U.S. Supreme Court during its most recent term.That wasn’t the only time Thomas and the Supreme Court were on the same page.In Jeffries v. Wood, 114 F.3d 1484, the 9th Circuit held that the Anti-Terrorism and Effective Death Penalty Act did not apply retroactively to death penalty cases. Thomas took on the task of writing the majority opinion for a 6-5 en banc court on an issue that had already divided many courts of appeals. He had been on the court barely a year.He did so over a withering dissent by Judge Alex Kozinski, who called the majority opinion an “oxymoronic conclusion.” In the end, using much the same reasoning as Thomas, the Supreme Court reversed a Seventh Circuit case that had gone the other way.“I cannot imagine the judge panicking about anything,” said former clerk Brian Pomper, now an associate at Skadden, Arps, Slate, Meagher & Flom in Washington, D.C. “He is imbued with a tremendous self-confidence that is very well placed. . . . He never batted an eye about [the decision].”Pomper and others who know Thomas said the judge’s keel is as even as they come. “I could not imagine him ever screaming at somebody from the bench,” Pomper said.“He would be a guy you would not fear unless you were unprepared,” said Billings lawyer Thomas Ebzery, who has known the judge since both were young practitioners.His steady personality translates into a judge who will let a lawyer say his piece.“I think he feels, and I think he’s even said this to me, [that] there is a value in allowing somebody to come to court to make their case. Even if it’s a loser,” Pomper said.One former client praised him. “He is, without a doubt, the best attorney I ever worked with,” said Wayne Schile, former publisher of the Billings Gazette.Schile’s fondness for Thomas is partly because the judge was always straight with him. When issues arose, “I was full of piss and vinegar and after a half-hour he had me calmed down and made me see the reality of the situation,” Schile said.

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