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NAME: Diarmuid O’Scannlain COURT: Ninth Circuit U.S. Court of Appeals APPOINTED: 1986, by President Reagan DATE OF BIRTH: March 28, 1937 LAW SCHOOL: Harvard Law School Previous Judicial Experience: None Diarmuid O’Scannlain could be your next U.S. Supreme Court Justice. It’s not likely, but he could be. The veteran Ninth Circuit U.S. Court of Appeals judge is on almost everyone’s list of candidates — just not on their A-list. But the frequent mentions say something about the esteem in which the Oregonian is held by members of the Republican Party. When one thinks of a conservative jurist, one might think of O’Scannlain. He describes himself as a “moderate conservative” who is less likely to take libertarian flights of fancy than are some of his conservative brethren on the Ninth Circuit. O’Scannlain wrote the Ninth Circuit decision upholding California’s Proposition 209, in which he penned the oft-quoted line: “A system which permits one judge to block with a stroke of a pen what 4,736,180 state residents voted to enact as law tests the integrity of our constitutional democracy.” Though a conservative, he has sometimes bucked expectations. In one recent argument over whether shutting a business down for violating liquor laws can be seen as a constitutional restriction if it involves a so-called “First Amendment business” — in this case a club featuring exotic dancing — O’Scannlain inclined surprisingly toward the left. He asked pointed questions about speech restrictions, while a more liberal colleague compared the business to a restaurant and asked lawyers to point out any difference. And, in 1999, he ruled that computers aren’t subject to the Audio Home Recording Act. That decision allowed the MP3 player industry to flourish, to the disgruntlement of major recording studios and the joy of joggers everywhere. As further proof that he can hold his own in the high-tech arena, O’Scannlain wrote 1999′s Brookfield Communications Inc. v. West Coast Entertainment Corp., 174 F.3d 1036, a case about trademark use on the Internet that is now a must-read in law school cyber-law courses. A former clerk said O’Scannlain sees judges as filling a limited role. “He definitely comes from a jurisprudential tradition that recognized a circumscribed role for the judiciary within the constitutional framework,” said Allan Moore, now a partner at Covington & Burling. O’Scannlain is the son of Gaelic-speaking Irish immigrants. Both were patriots — his father fled to America after being caught in England trying to buy arms for the Irish Republican Army. O’Scannlain says he was named for the last Irish pagan king, but his father had to strike a deal with the priest on the middle name to get him baptized. Clerks in O’Scannlain’s chambers have no small degree of authority. He lets them issue bench memos under their own names, even though their conclusions may differ from the judge’s. O’Scannlain says he knows the outcome of an overwhelming majority of the cases before oral arguments, but has a couple of cases every month where they do make a difference. With 17 years of service on the bench, O’Scannlain is likely to chair any panel he sits on. He does not dominate those arguments, though, letting his colleagues ask questions while tossing in some of his own. Out of fairness to lawyers at the bottom of a calendar, he says he tries to hold lawyers to their time limit. And one shouldn’t read too much into the questions O’Scannlain asks. “I may ask a person I’m ruling in favor of a question of critical disposition, but it’s a way of getting at the core issue,” O’Scannlain said. A test, in other words. “I think Judge O’Scannlain is a lawyer’s judge in the sense that he really does approach every case on its merits . . . irrespective of where his initial instincts or judicial philosophy might otherwise lead. And I think that’s probably what makes him a desirable member of the panel for lawyers,” Moore said. He is conservative, said Milberg Weiss Bershad Hynes & Lerach partner Sanford Svetcov, but “I’ve only gotten a fair shake in front of [Judge] O’Scannlain.” “He takes them one at a time and he calls the balls and strikes,” Svetcov said. Some judges are open about where a lawyer stands during oral argument. “I tend not to do that,” O’Scannlain said. O’Scannlain is not one to raise his voice. But, he warns, “I could get impatient if the lawyer is trying to avoid a question or a question of my colleagues. The lawyers that try to duck a question immediately raise a credibility issue.” O’Scannlain has been active in efforts to break up the Ninth Circuit, a move he calls “inevitable.” “We’ve really got a size problem,” said O’Scannlain, who has testified before Congress several times on the matter. “There is a point at which you get so diffuse and so large that you start acting like a state legislature and less like a court.” As for the Supreme Court, he’s heard the whispers. “There’s no way of knowing,” O’Scannlain said, adding that he has not been interviewed by the White House, which is screening candidates for potential vacancies.

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