COURT: Ninth Circuit U.S. Court of Appeals
APPOINTED: By President Clinton, Confirmed March 9, 2001
DATE OF BIRTH: April 17, 1945
LAW SCHOOL: Boalt Hall, 1973
PREVIOUS JUDICIAL EXPERIENCE: None
Marsha Berzon’s ascension to the Ninth Circuit was overshadowed by the longer and more rancorous battle over her colleague, Judge Richard Paez.
Both were finally confirmed after lengthy confirmation processes that descended into partisan politics. Both were attacked as liberal, but after a lengthy floor hearing in the Senate, Berzon was confirmed by a 64-34 vote.
Sen. Barbara Boxer, D-Calif., later presented her with the official Senate tally sheet as a gift.
While her confirmation slipped about as far under the radar as possible for someone who waited two years for the event, her work since then has set her head and shoulders above any other Clinton nominee confirmed late in the former president’s tenure.
It took Berzon less than sixth months to get her first published opinion out the door, a key decision on Indian gaming which came out on Aug. 23, 2000. Paez, who had unfinished business on the Los Angeles federal bench to take care of, didn’t publish his first opinion until earlier this year.
Berzon has authored 23 opinions, which places her among the court’s most prodigious scribes.
It is a remarkable record for a first-year judge. Paez has inked 13 decisions since he received his commission. Judge Richard Tallman, who came on the bench two months after Berzon, has written 11. Judge Johnnie Rawlinson, who came to the court two months after that, has written five.
Furthermore, Berzon has written four dissents, which some consider a measure of a judge’s acclimation to the court. Recently, she dissented from a decision holding that the ability to use a computer is not a substantial life activity under the Americans With Disabilities Act.
Some would argue that decision supports her “liberal” label. Whether that’s accurate or not can be debated, but it’s almost certain Berzon will never be confused with a conservative.
During her confirmation process, Berzon was attacked from the right by those who objected to her ties to organized labor (she was a longtime assistant general counsel to the AFL-CIO) and her association with “radical” women’s causes (she argued several women’s rights cases before the U.S. Supreme Court).
But, like it is for most judges who survive confirmation battles, the criticism is a distant echo.
“I really have not followed, in any systematic way, Judge Berzon’s decisions while on the bench,” said Tom Jipping of the Free Congress Foundation, once one of her harshest critics.
Perhaps because of her experience arguing cases in the federal courts, Berzon questions lawyers with the confidence and vigor of a veteran. During a recent hearing over the constitutionality of IOLTA funding, Berzon appeared to show her hand by vigorously probing the defendant’s case.
However, she was just as Socratic in questioning the plaintiff.
“She came to the court very familiar with many of the issues we deal with,” said Ninth Circuit Judge Stephen Reinhardt, another prolific author. “There’s no question that she’s extremely well-qualified for this job.”
The two teamed up in a recent suit outlining protected speech to police officers. A defendant had uttered either “fuck you” or “that’s fucked” to a park ranger during an arrest of another person, and was arrested for disorderly conduct. In throwing out the conviction, Reinhardt wrote that the case wasn’t even close. Berzon joined him to form a 2-1 majority.
Berzon was out of the country and could not be reached for comment for this article.
Reinhardt offers nothing but praise for Berzon: “In a month or so, she was like a fully experienced judge,” he said.
He added that Berzon is active in communicating her position to other judges in conference. Her effectiveness in doing so is, perhaps, exhibited by the high number of opinions she has authored.
But this much is clear: Lawyers who ignore Berzon as “the new judge” do so at their peril.