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U.S. Supreme Court Justice Sandra Day O’Connor had some advice for judges as the 9th Circuit’s annual conference drew to a close on Thursday. “Try to make a friend out of the members of Congress,” O’Connor said. “Try to help them understand the needs of judges. It’s much harder to turn a cold shoulder on someone you know.” O’Connor took the stage for nearly an hour in a partially rehearsed “conversation” with 9th U.S. Circuit Court of Appeals Judge Raymond Fisher, Seattle U.S. Attorney John McKay and University of Arizona law professor Ana Maria Merico-Stephens. Despite tensions with Congress, confusion over criminal sentencing and budget problems hanging over the room, O’Connor was charming and, at times, self-effacing. She got a few laughs out of conference attendees, who gave her a standing ovation at the end of the program. The justice, who is the 9th Circuit’s liaison to the Supreme Court, avoided going into detail about the cause of the recent sentencing confusion, Blakely v. Washington, 04 C.D.O.S. 5539, in which she dissented. But she did say that the decision “looks like a number 10 earthquake to me.” But she encouraged judges to educate legislators about what goes on in the courts. At the same time, she warned that any effort to influence Congress is going to be tough. “The apparent state of relations … is more tense than at any time in my lifetime,” O’Connor said, citing judicial pay and other funding issues. “What can we do about it?” She said lawyers “should be equally engaged.” Northern District of California Judge Susan Illston and Magistrate Judge James Larson said they already follow O’Connor’s advice and try to regularly meet with California’s congressional delegation. “Information seems to be the key,” Illston said. “If there’s an open flow, maybe things can improve.” Larson said O’Connor’s perspective is useful. “Even [Chief Justice William] Rehnquist has to walk across the street,” he said. O’Connor’s words were an appropriate bookend for the conference, which began Monday with a state of the circuit speech by 9th Circuit Chief Judge Mary Schroeder. Although the tone of the four-day event was generally positive, concern over what Congress might do with the judicial budget or with sentencing guidelines in light of Blakely crept into seminars and pervaded private conversations. The tension isn’t only between Congress and courts. In a quick review of the most recent high court session, O’Connor briefly touched on Hamdi v. Rumsfeld, 04 C.D.O.S. 5669, and the other cases that questioned the legality of some tactics in President Bush’s war against terrorism. O’Connor said the cases highlighted a clash between branches. “These are terribly important cases in our country,” she said. “The executive position was to leave it in the hands of the executive [branch] and have no judicial review.” She said the cases were difficult because justices couldn’t find very many precedents to guide decisions. “There was no situation such as what we had in Guantanamo Bay,” O’Connor said. She added a few minutes later: “I think it’s probably a good idea to move slowly in unknown areas.” Just before the conference began, the chief judges from California’s four judicial districts sent a letter to members of Congress warning of layoffs and reduced services if there’s no budget. Judges are already warning of budgetary doom and gloom because it appears that Congress will not approve a plan in time for the 2005 fiscal year, which begins in October. If there isn’t a budget on time, courts will continue operating at 2004 levels. And on Wednesday, the 9th Circuit became the latest circuit to decide a federal case using Blakely. The original decision tossed out Washington state’s sentencing guidelines because they allow judges to ratchet up prison terms based on facts that don’t have to be proved to juries first. The 9th Circuit and other courts have said Blakely applies to the federal sentencing scheme, while other courts have gone the other way. The government has asked the Supreme Court to expedite review in two federal cases to end the uncertainty. Right before O’Connor took the stage, conference members voted on two resolutions. One urges legislators to give judges more discretion in sentencing. The other asks for help to avoid budget cutbacks. The results of the voting won’t be available for a couple of weeks. The Associated Press contributed to this report.

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