Bench Memos

NRO’s home for judicial news and analysis.

Ninth Circuit Judge Sidney Thomas—Part 1


Given the news that President Obama has interviewed Ninth Circuit judge Sidney R. Thomas for the Stevens vacancy, I’m going to try to find time to do a series of posts presenting further evidence in support of my overall assessment that Thomas is on the far Left of the very liberal Ninth Circuit—or, as I put it before, that while he may be physically in Montana, he’s jurisprudentially in Reinhardt-istan.

Let’s start with Thomas’s en banc opinion in Summerlin v. Stewart, 341 F.3d 1082 (2003), the opinion that Kent Scheidegger has called “quite possibly the worst opinion ever to issue from the Ninth Circuit, and that is saying quite a lot.”  In that case, Thomas (joined by seven Carter or Clinton appointees, including Reinhardt) ruled that the Supreme Court’s decision in Ring v. Arizona, which held that aggravating factors under Arizona’s death-penalty law need to be proved to a jury rather than to a judge, announced a substantive rather than a procedural rule (and therefore applied retroactively on habeas review).  A three-judge dissent (written by one Clinton appointee and joined by another) observed that Thomas’s opinion “wander[ed] afield”—and contradicted a very recent Supreme Court precedent as well as rulings from other circuits—in holding that Ring announced a substantive rule. 

On review, the Supreme Court (in Schriro v. Summerlin) reversed Thomas’s ruling.  Not a single justice expressed agreement with Thomas’s holding that Ring announced a substantive rule, and Justice Scalia’s opinion took four brief paragraphs to dispense with the “remarkable” analysis that covered 20 pages of Thomas’s opinion.  (By a vote of 5 to 4, the Court also rejected Thomas’s alternative holding that Ring announced a watershed rule of criminal procedure.)

Consider also the Ninth Circuit’s en banc ruling in Smith v. Baldwin, 510 F.3d 1127 (2007).  In that case, the en banc panel ruled by a 13-2 vote that a habeas petitioner who had pled guilty to felony murder had procedurally defaulted on his habeas claim.  (For a short period of time, the Ninth Circuit’s limited en banc panel was expanded from 11 to 15 members.)  The 13-judge majority included Carter and Clinton liberals like Mary Schroeder, Kim Wardlaw, Richard Paez, and William Fletcher.  Guess who the two dissenters were?  Stephen Reinhardt and Sidney Thomas.

Or how about the Ninth Circuit’s en banc ruling in Fields v. Brown, 503 F.3d 755 (2007).  There, the Ninth Circuit ruled 12 to 3 that a habeas petitioner who had been convicted on various counts of murder, robbery, and rape had not been denied a fair trial as a result of alleged juror bias.  Six Carter or Clinton appointees were part of the majority on this issue.  The three dissenters were hard-core lefties Marsha Berzon, Stephen Reinhardt and … Sidney Thomas.

Then there’s the Ninth Circuit’s en banc ruling in Morales-Izquierdo v. Gonzales, 486 F.3d 484 (2007), in which the court ruled by a 7-4 vote that a change to immigration regulations that Attorney General Janet Reno made in order to facilitate the removal of illegal aliens was lawful.  Four Carter or Clinton appointees were part of the majority.  Thomas dissented, joined by Stephen Reinhardt, Harry Pregerson, and William Fletcher.

And in Association of Mexican-American Educators v. California, 231 F.3d 572 (2000), three judges dissented from Clinton appointee Susan Graber’s en banc ruling that a test used for employment in California’s public schools had been properly validated:  Stephen Reinhardt, Mary Schroeder, and … Sidney Thomas.

Let me be clear:  I am not maintaining that this brief discussion suffices to establish that Judge Thomas is wrong to inhabit Reinhardt-istan.  I mean it only to provide substantial evidence (and I hope to find time to present a lot more) in support of my claim that that’s where Thomas generally is jurisprudentially.  (If there’s significant countervailing evidence that I have overlooked, please call it to my attention.)

Tags: Whelan


Subscribe to National Review