COURT: Ninth Circuit U.S. Court of Appeals
APPOINTED: May 28, 2003, by President Bush
DATE OF BIRTH: June 9, 1950
LAW SCHOOL: McGeorge School of Law at University of the Pacific, 1975
PREVIOUS JUDICIAL EXPERIENCE: San Joaquin County commissioner, San Joaquin County Superior Court, Third District Court of Appeal
A word of advice to those appearing before Ninth Circuit U.S. Court of Appeals Judge Consuelo Callahan: Watch out if she asks a lot of questions.
It could mean you’re going down.
“I’m � probably more focused on the party I want to rule against because I want to test my conclusion and give an opportunity for them to talk me out of it,” she said.
There are exceptions. Although she admits to making up her mind on the briefs, she believes in the power of oral argument. That means there’s a chance you can persuade her, even if you are on the receiving end of questioning, which she likes to be more conversation than interrogation.
Callahan, who skated through her U.S. Senate confirmation with bipartisan support, gets mostly good reviews from lawyers who have appeared in front of her, even those she’s ruled against. While they know she is conservative, especially in criminal issues, attorneys say she’s well-prepared and open-minded.
Anthony Gallagher, federal public defender in the District of Montana, argued in front of Callahan in August. Gallagher said the judge seemed more interested in his argument than the other panelists, Cynthia Holcomb Hall and Andrew Kleinfeld.
The direct appeal case, U.S. v. You, 04 C.D.O.S. 8020, dealt with whether consenting to a mistrial foreclosed a double jeopardy claim. Callahan eventually wrote the unanimous opinion that shut down Gallagher’s appeal.
Even so, “she asked very good questions,” Gallagher said. “She found at least our arguments have some validity.”
Although she has limited federal experience, Callahan has logged plenty of time on the bench. Prior to her appointment, she served on the Third District Court of Appeal for six years. Before that, she was a San Joaquin County judge.
She said it was while she was still a lawyer — she spent a decade as a deputy district attorney — that she learned how to talk to people. She also spent time at the Sacramento County public defender’s office during law school. That experience, she said, helped give her good rapport with defendants when she became a trial court judge.
“I know that [litigants] are real people. I understand the impact” of decisions, Callahan said. “I’ve had real experiences, taken witnesses to court, really talked to victims. I don’t want to ever be accused of being in an ivory tower.”
One way she avoids that criticism is by remaining active in the communities around Stockton, where she lives, and Sacramento, where her chambers are located.
She’s involved in numerous community groups, focusing on legal education and social work, such as child abuse prevention, which she sees as a way to keep people from entering the court system later in life.
She’s also active in legal groups, including the Anthony M. Kennedy American Inn of Court. Colleagues say she brings energy and creativity to the group.
“She’s got a tremendous work ethic,” said Third District Presiding Justice Arthur Scotland.
Callahan also has a fun side. During one Inn of Court presentation, she doffed a trench coat to reveal a sequined costume and tap shoes — her way of making a point about judges who “tap dance” around an issue. She then jumped up on a table and did a quick dance.
“It was an image and a lesson that none of us have ever forgotten,” said James Mize, a Sacramento County Superior Court judge and current president of the California Judges Association.
So what about her rulings?
Although Callahan has been on the Ninth Circuit bench for less than eight months, a couple of trends are emerging.
One is that it’s not easy to convince her to take the side of a criminal defendant. Of the 11 published opinions Callahan has authored, five deal with criminal cases. In all of those, she decided in favor of the government. Notably, all were also unanimous.
She also has written six published dissents. Two of those came in en banc requests, Belmontes v. Woodford, 04 C.D.O.S. 1732, and Ileto v. Glock, 04 C.D.O.S. 4631.
In both, Callahan led dissents in favor of accepting en banc review of panel rulings. In the Belmontes dissent, Callahan took sides in the ongoing controversy over the Ninth Circuit’s role in reviewing state criminal cases.
“The panel � dissects a 21-year-old record to second-guess the jury’s decision. In doing so, it finds a ‘reasonable likelihood’ of error where a state supreme court and a United States district court found none,” she wrote.
Callahan said judges should take a stand and cast a vote in en banc requests because not voting is the same as a “no.”
Discussing the en banc process, which is unique to the Ninth among the federal circuits, leads her into the ongoing debate over whether the circuit is too big. Members of Congress who want to split the circuit have been accused by others of being ideologically motivated, rather than concerned with the administration of justice.
Callahan has not taken a position on the split, but said:
“In a vacuum, ideology should not be a factor; administration of justice should be. I ultimately hope that whatever decision is made is based on serving the people best.”