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Court: 9th U.S. Circuit Court of Appeals Appointed: 2000, by President Clinton Date of Birth: May 5, 1947 Previous Judicial Experience: Central District of California, 1994-2000; Los Angeles Municipal Court, California, 1981-1994 Law Degree: Boalt Hall School of Law If he buries his cheek in his hand, if he crosses his arms, even if he yawns — don’t read too much into Richard Paez’s body language. One of the 9th U.S. Circuit Court of Appeals’ newest judges, Paez sometimes seems submerged beneath the colloquy of oral arguments. But he also seems to spring unexpectedly back into the fray, usually as things close in on the crux of the debate. What ensues is a flurry of questions thrown at the lawyers with a high-pitched delivery, the words running into each other. Mistaking Paez’s body language for passivity is a mistake. “He asks sharp questions, and he seems to ask them at the right time,” said one lawyer who has observed him. But he is relaxed. Paez — especially for a newer judge – seems comfortable enough on the bench to enjoy a laugh. During one recent argument, he jokingly reminded a lawyer busy interpreting the Bauman factors of review that the judge to whom the lawyer was speaking, Senior Judge Clifford Wallace, actually wrote the Bauman case. It has been nearly two years since Paez’s ascension to the 9th Circuit, a period of time that does not exceed the duration of the Congressional battle over his nomination. He came to the court under a cloud of controversy, attacked by conservatives as too liberal (after law school Paez, a Hispanic Mormon, worked for several years helping the poor, including farm workers). But since coming to the bench, things quieted down considerably. Or at least that was the case until November. That was when Paez inked Andrade v. Attorney General of the State of California, 270 F.3d 743. For the first time anywhere, a court struck down a sentence under California’s controversial Three Strikes law. Almost immediately, Attorney General Bill Lockyer announced he would forgo a petition for en banc review and appeal the case directly to the U.S. Supreme Court. The case opened the door for a flood of challenges by prisoners serving life sentences for minor offenses. Earlier this month, the 9th Circuit followed up Andrade with another opinion (this one authored by Judge Marsha Berzon, a similarly controversial nominee who was confirmed the same day as Paez) finding the practice of handing crooks long sentences for petty theft to be cruel and unusual punishment. The Andrade decision did not come from someone whose heart bleeds for criminals. Paez’s nomination to the bench was supported by an array of Southern California law enforcement agencies. In another 9th Circuit case he showed sympathy for the real-world uncertainties of police work, excusing a border cop’s one-hour delay in notifying a juvenile’s mother that her daughter was in custody. Paez, who did not respond to a request for an interview and has not talked publicly about his nomination fiasco, has been a judge for more than 20 years, something few 54-year-olds can claim. Most of those years were spent as a trial judge in Los Angeles, first on the state bench, later in federal court. “I found him to be very well informed on the issues,” said San Jose solo Harvey Sackett, who won a favorable ruling for a client appealing a denial of Social Security benefits. “I thought his questions were very pertinent,” Sackett said. Although confirmed in March 2000, Paez didn’t author his first opinion until January 2001. Shortly after that he inked his first en banc case – a unanimous decision that cleared up 9th Circuit precedents on equitable tolling. He has written three dissents and 22 opinions, most recently his second unanimous en banc decision, this one allowing district court judges to consider additional evidence in criminal cases that come back on remand. But his first dissent probably says more about Paez. In an antitrust dispute over California milk prices, he would have held that the district court was right to throw out the case. In doing so, he wrote that he would have taken a “common sense” approach. “It is clear … that a rote application of antitrust law – whether federal or state – is not particularly enlightening. Only a return (briefly) to antitrust principles and common sense will help resolve the issue,” he wrote in Knevelbaard Dairies v Kraft Foods, 232 F.3d 939. The dissent was also notable because it was released before his first majority opinion – another sign that Paez is comfortable on the 9th Circuit.

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