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COURT: Ninth Circuit U.S. Court of Appeals APPOINTED: Feb. 4, 1998 DATE OF BIRTH: Oct. 11, 1951 LAW SCHOOL: Arizona State University College of Law, 1976 PREVIOUS JUDICIAL EXPERIENCE: Commissioner and judge, Maricopa County Superior Court; magistrate judge, U.S. District Court for the District of Arizona Ninth Circuit U.S. Court of Appeals Judge Michael Hawkins tells a story to illustrate why it’s good to have someone like Barry Silverman on the bench. The two were on a panel together in Oregon along with Judge Sidney Thomas. The appellant had reserved time for rebuttal during arguments, and while returning to the podium, the lawyer said, “I wanted to respond to the very good questions by Judges Hawkins and Thomas.” But before the lawyer could begin, Silverman, full of mock indignation, broke in: “Well, what about the question I asked?” “It absolutely broke up the room,” Hawkins said with a laugh. In the rarefied world of appellate justice, it helps to have a sense of humor. Although a courtroom is not a comedy club, Silverman said, “gentle, good-natured humor in small doses can be an effective way to humanize the proceedings, put people at ease and illustrate serious points.” Other judges on the circuit certainly appreciate it. About the only thing his colleagues mentioned more than Silverman’s sense of humor was his “pride and joy,” his beagle Bagel. Besides a quick wit and love of his dog, Silverman also has a reputation for being even-tempered and independent. Lawyers say he occupies the political middle ground — he was part of the contingent of moderates President Clinton appointed to the court — and those who have appeared in front of him say he’s an active participant in oral arguments who seems interested in what they have to say. San Francisco appellate lawyer Cliff Gardner, who has argued two habeas cases in front of Silverman, said the judge asked questions and gave the lawyer an opportunity to win him over. “The best you can do is get a chance to change a judge’s mind,” Gardner said. Another criminal appellate practitioner, Berkeley solo A.J. Kutchins, described the jurist as “extremely courteous and restrained.” Silverman said, “I’m not there to try to confound everybody or prove what a whiz I am. If I ask a question, it’s because I really need to know.” Although Kutchins considers Silverman conservative on criminal justice issues, he said the judge was easier to deal with than others on the court who lean even further right. Those more conservative judges, Kutchins said, can be aggressive, even abusive, because they don’t like habeas cases. “Other than the fact he voted against me, I have nothing ill to say,” Kutchins said. Silverman’s rulings confirm his moderate reputation. He concurred in the recent Jespersen v. Harrah’s, 04 C.D.O.S. 11332, which said employers can force women workers to wear makeup. He also upheld involuntary collection of inmate DNA in United States v. Kincade, 04 C.D.O.S. 7542 — despite the cries of “Big Brother” from dissenters on the en banc panel. Yet he also voted with the majority in Cooper v. Woodford, 04 C.D.O.S. 1281, to block a California execution — a practice that critics hold up as evidence that the Ninth Circuit is too liberal. Asked if he agreed with the moderate label, Silverman said, “I guess so,” but also called efforts to categorize judges pointless. “I make a real, honest-to-God effort to decide cases in accordance of the law — whether I like the law or not,” Silverman said. “I try to keep my political opinions out of it. � After doing this as long as I’ve been doing it, it’s an intellectual discipline.” Now 53, Silverman has worn black robes since he was 28. His first appointment was as court commissioner in Maricopa County, which encompasses Phoenix. He did that for about five years before getting a promotion to superior court judge in 1984. In 1995, he became a U.S. magistrate; then, three years later, Clinton tapped him for the appeals bench. Another judge — someone Silverman now considers his mentor — had a hand in those opportunities. Robert Broomfield, now a senior U.S. district judge, was Maricopa presiding judge. He picked Silverman to be commissioner and then was chief district judge when Silverman became a magistrate. “He doesn’t take himself [too] seriously. At the same time, he’s serious about what he does,” said Broomfield. Early in his career, Silverman encountered another judge whose demeanor helped shape his own future sensibilities: Sandra Day O’Connor. The U.S. Supreme Court justice was a Maricopa County superior court judge when Silverman was a prosecutor. “One thing I did learn from her that has served me well — she was a stickler for deciding the case that was in front of her, for not reaching out,” Silverman said. “She really was a remarkable teacher. I have thought over the years how fortunate I was to have cut my teeth in her courtroom.” O’Connor, of course, is well known as a moderate on the high court. To explain Silverman’s approach to the law, Judge Hawkins, who served as “buddy judge” when Silverman arrived at the Ninth Circuit, pointed to his colleague’s prior experience. “He’s very pragmatic. I think the unique feature of his bakground — daily contact with lawyers and legal issues — [has] influenced his judgment about things,” said Hawkins. “He knows what it means to sentence someone to prison, sign away their life savings. � He is very much his own man. This is not somebody who looks to someone else or looks to a particular point of view for guidance.”

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