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Ninth Circuit Court Retreats to Idaho 

Legal insiders point everywhere but at themselves during a sun-filled non-examination

Tuesday, Aug 5 2008
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IN A PROFESSION THAT IS supposed to be about listening to competing points of view, the 9th U.S. Circuit Court of Appeals over the past few days seemed mostly interested in listening to itself or lawyers invited from large law firms, as the West’s most influential judges and lawyers gathered at the swank Sun Valley Resort.

The tone of the 2008 Ninth Circuit Judicial Conference seemed set from the first day, when Merrill Young, chairman of the combined lawyer/judge committee, a midlevel partner from the international megafirm Gibson Dunn & Crutcher, handed the award for lawyerly achievement to a senior partner in her firm.

Though Sun Valley is primarily a ski resort, the summers put the “Sun” in its title. The days were in the high 80s, the nights chilly with an uninterrupted view of the stars. The conference has been repeatedly held in Sun Valley, and Associate Justice of the United States Supreme Court Anthony Kennedy reminisced about organizing one of them when he was a 9th Circuit appellate judge. (The primary criteria for picking a location appear to be tanning and golf. Last year’s location was Hawaii, and next year’s is Monterey.)

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The press was excluded from many of the events. I was escorted away from an unfenced cocktail party in the open air while looking to speak with the conference’s organizer, Circuit Judge Richard Clifton.

The chief judge of the 9th Circuit, Alex Kozinski, whom I had tangled with in public in recent weeks when I discovered and publicized the porno-based humor he kept on his private Web site, canceled his question-and-answer event and made his way around the resort with a retinue of four to six armed U.S. Marshals. (Justice Kennedy, whom I saw out on the town during the conference, required just two marshals.)

The few times I did see him in the hallways and patios of the resort, Kozinski appeared particularly reluctant to chat with trial-court judges — the folks the appellate court oversees. This is hardly surprising. Kozinksi has a sharp tongue and an even sharper pen when reviewing lower-court decisions. Before the chief judgeship rotated to him, some District Court judges tried to find out if there was any way to disqualify Kozinski from holding the administrative conch, according to a solid source in the court bureaucracy.

To the extent that the faults of the 9th Circuit or any of its judges were discussed — these came up very rarely in this supposed retreat week of self-examination — the conference focused on the people who don’t accept our legal system.

At the final panel, featuring lawyers from Google and Intel, the latter’s Bruce Sewell complained vociferously about the European Commission’s antitrust decisions against his company, which are causing both companies billions in missed profits.

When asked by the moderator how the European Commission was dealt with, Sewell stated that Intel and Microsoft teamed up in opportunistic coalitions with other industries in big European countries, thus exporting the more lax U.S. antitrust “rule of law” onto the backward Europeans.

At another point, Intel’s Sewell provided an anecdote from India about how to cope with judicial corruption abroad. He relayed a tale of a local employment dispute resulting in the arrest of Intel’s human-resources manager, and involving bribes that were demanded by the Indians every step of the way. Intel’s solution was to tell the governor of the particular Indian state that the company would halt all additional investment. The HR manager was released from custody.

Such tactics met with nods and smiles from the rest of the panel, which included a representative of the federal Securities and Exchange Commission.

Shortly after that panel, Supreme Court Justice Anthony Kennedy gave a speech to the federal judges gathered and handpicked lawyers who come before the 9th Circuit, declaring that they should spread the “rule of law” to “failed states” in Africa and Asia.

This seemed odd advice. Many of the 9th Circuit’s judges, such as Richard Tallman, already bitterly complained about the number of hours they must spend squeezed into airline seats for this job. Stretching across the nine Western states plus Guam and the Mariana Islands, the 9th Circuit covers one-fifth of the U.S. population with 28 appellate judges, 112 trial-court judges and 178 bankruptcy judges and magistrates. They are spread very thinly in comparison to California’s state courts. Los Angeles County alone has 28 appellate judges, 429 trial-court judges and about 204 secondary commissioners and referees.

Justice Kennedy’s exhortation to spread the wisdom of the American legal system was one of two themes at the high-powered conference. The other was the counterintuitive reality that while the number of cases filed in federal courts remains fairly stable, there are fewer chances to argue these cases in public. The result is the increasing squelching of formal public debate over important issues of law.

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