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COURT: Ninth Circuit U.S. Court of Appeals APPOINTED: Nov. 2, 1979 DATE OF BIRTH: Oct. 13, 1923 LAW SCHOOL: Boalt Hall School of Law PREVIOUS JUDICIAL EXPERIENCE: Municipal and superior court judge, Los Angeles County; U.S. district judge, Central District of California Harry Pregerson — homeless shelter founder, former U.S. Marine and judge on the Ninth Circuit U.S. Court of Appeals — has a story for everything. Asked to explain the origins of his well-known advocacy on behalf of the downtrodden, Pregerson tells of an encounter he had just a few weeks ago, when he attended a play at a Veterans Administration theater near his home in Woodland Hills. In the restroom, he met another senior citizen, a stranger with a cane that Pregerson realized was too short. Pregerson handed the man a paper towel and adjusted his cane. The man said, “What’s your name? Are you Harry?” It turned out he was an old friend Pregerson hadn’t seen since 1943. “I should have known that was you,” the man said. “You were always considerate and kind.” Pregerson said he replied, “When we were in the Boy Scout troop, wasn’t the first thing that we learned was to do a good deed and take care of old people?” Pregerson’s friends and colleagues are familiar with this simple philosophy. The jurist, now 81 and in his 26th year on the Ninth Circuit bench, is fond of saying that, besides the Boy Scouts, he is also guided by the Ten Commandments, the Marine Corps Hymn and the Bill of Rights. For Pregerson, there’s no difference between deciding cases and serving soup at one of the Southern California homeless shelters he helped found. “I like being a judge because it gives me opportunities to help others and to do the right thing,” Pregerson said. That sounds nice, but it also makes some people wince. Judges, they say, are supposed to decide cases; “helping” someone does not always good law make. But Pregerson has held that philosophy out front from the beginning of his appellate tenure. At his 1979 confirmation hearing, Sen. Alan Simpson, a Wyoming Republican, famously got Pregerson to admit that, if forced, he would choose his conscience over the law. For Ninth Circuit critics, that’s evidence that the court’s “liberal” wing, which also includes Judge Stephen Reinhardt and Senior Judge Betty Fletcher, decides cases outside acceptable jurisprudence. But although it’s fair to characterize Pregerson’s ideology in that way, it’s a mistake to blame all of his decisions on mere political leanings. “The truth is that he says that with a smile,” said Hastings College of the Law professor Rory Little. “He doesn’t do it that often.” “I don’t always agree, but his opinions are always carefully reasoned. Pregerson does not hide the ball as to where he’s going. He’ll tell you when he’s not following the letter of the law,” Little said. “That’s integrity.” Critics say that’s little consolation. “I think his honesty is refreshing,” said Howard Bashman, a Pennsylvania appellate lawyer and creator of the “How Appealing” blog. “But in a case where he believes his conscience conflicts with the law, the appropriate thing would be to remove himself from the case.” Bashman accused Pregerson of “judicial insubordination” in a 2003 Los Angeles Times editorial after the judge refused to sign on to majority opinions upholding convictions under California’s Three Strikes law even after the U.S. Supreme Court said the punishment did not violate the Eighth Amendment. Little defends Pregerson by pointing out that there is a long tradition of conscience-over-the-law decisions, such as outlawing school segregation and ruling against Japanese-American internment during World War II. Lawrence Kupers, who clerked for Pregerson from 1988-89 and now works as a public defender in Washington, D.C., said that, although the judge always urged him to “do the right thing,” legal reasoning didn’t suffer. “He was a stickler for good, straightforward prose in his legal opinions � and that transferred over to his reasoning,” Kupers said. “He would be accused of judicial activism, but I don’t think he was [a judicial activist]. � He has confidence and faith in the wisdom and morality of the law.” Pregerson, who had a heart valve replaced in October, could have taken senior status years ago. Although he admitted that he doesn’t like the thought of a conservative replacement and feels it’s important to continue to vote in en banc calls, he said he stays with it for a simpler reason. “I like it,” he said. “It’s a great honor and I take the responsibility very seriously.” Pregerson may move a little slowly — he has trouble opening the heavy wooden doors at the Ninth Circuit’s San Francisco headquarters — but his intellect and wit are sharp as ever. He is just as likely to rely upon his seemingly endless repository of stories to flesh out discussions as he is to consult his PDA. Meir Feder, of counsel at Jones Day in New York, appeared in front of Pregerson last year to argue NGO v. Woodford, 05 C.D.O.S. 2495. Pregerson wrote the unanimous opinion in favor of Feder’s client, a California prisoner appealing disciplinary action that was imposed on him by the state. Feder said Pregerson’s demeanor surprised him. “For someone with a liberal reputation, he doesn’t fit the stereotype that might go with that,” Feder said. “He comes across as an ex-Marine with almost a Clint Eastwood air about him.”

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