Supreme Ambitions (12 page)

Finding the judge's most conservative opinions wasn't hard, since she took public pride in them, mentioning them frequently during speaking engagements and media interviews. The challenge came from choosing the highlights: in her relatively short (by federal judge standards) time on the Ninth Circuit, Judge Stinson had already issued major rulings that advanced religious freedom, cut back on excessive protections for the rights of criminal defendants, upheld reasonable regulations on abortion, and protected corporations from overzealous plaintiffs' lawyers. Making the case for her SCOTUS candidacy to conservatives wouldn't be hard—and her status as an Asian American woman, and an attractive one at that, wouldn't hurt.

Locating prominent liberal rulings by Judge Stinson, which she presumably wanted to show she wasn't a right-wing extremist, presented greater difficulty. She had joined a number of decisions supporting “the little guy”—a criminal defendant against the government, a plaintiff against a multinational company—but many of these rulings were unpublished or written by another judge. I did find one published opinion by Judge Stinson herself that reversed a criminal conviction, which I included in the collection of her “liberal” opinions, but it involved a textbook case of prosecutorial misconduct that even the most law-and-order judge could not condone. On the civil side, I found an opinion written by the judge in a high-profile lawsuit against a major pharmaceutical
company, in which she upheld a jury's $200 million damages award. It wasn't exactly “liberal”—jury verdicts are entitled to significant deference when reviewed on appeal, and the smart and careful district judge had made no legally erroneous rulings—but it would have to do.

Then it came to me: what about the immigration context? Immigration was a hot-button issue for both the right and the left, with conservatives railing against “illegals” and liberals defending “undocumented immigrants.” Surely I could find some notable opinions from Judge Stinson in her immigration jurisprudence.

I quickly found a good “conservative” opinion to showcase, a published opinion by Judge Stinson rejecting the asylum claim of an immigrant from Mexico. The facts of the case were not particularly interesting—his claim of political persecution seemed dodgy at best, and internal inconsistencies marred his asylum application—but the language in the opinion jumped out at me. Judge Stinson included the requisite expressions of sympathy for the immigrant, who came from a poor family in a part of Mexico torn apart by the drug wars, but went on to discuss how recognizing dubious asylum claims would be unfair to the many law-abiding immigrants who wait patiently, sometimes for years, so they can come to the United States through proper channels.

Then I turned to searching on Westlaw for a “liberal” immigration decision by the judge. I expected to find a ruling in which Judge Stinson, herself the daughter of an immigrant, deployed some fine rhetoric about the United States as a refuge for the persecuted.

Hmm. That didn't seem right. I tinkered with my search terms and tried again.

How odd. Could I be missing something? I didn't think so—I view myself as a legal research queen, or at least a duchess—but just in case, I switched to a different database and ran all my queries again.

Strange. Could Westlaw be missing something? I hopped over to Lexis and tried my searches in multiple databases. Zilch.

I couldn't believe it. In all her time on the Ninth Circuit, Judge Stinson had never ruled in favor of an immigrant, despite hearing literally
hundreds of immigration cases. In the few cases where the panel majority voted for the immigrant, the judge dissented. Sometimes she would offer strong reasoning for her dissent, often getting the better of the majority. But in the toughest cases, the ones where the immigrants had seemingly ironclad cases in favor of asylum, she would still dissent from the ruling in favor of the immigrant. In these cases, she provided no real reasoning to support her vote, just a single-sentence mantra: “Based on the exceedingly demanding standard applicable to claims of political asylum, set forth by the Supreme Court in
INS v. Elias-Zacarias
, 502 U.S. 478 (1992), I respectfully dissent.”

Staring at the stark reality on the computer screen before me, I remembered the “homework” assignment that Jeremy had given me when we met up at Intelligentsia Coffee: to look up Judge Stinson's past rulings in immigration cases. I was surprised. And concerned. Was Jeremy right? Was my boss—one of the most well-regarded federal judges in the country, a possible nominee to the United States Supreme Court—nothing more than a political hack?

I wasn't prepared to go that far, but I did feel I owed it to Jeremy to admit when I was wrong. I picked up my iPhone and texted him impulsively, before I had the chance to get second thoughts: “Hey. About that ‘homework' assignment you gave me … Call me when you get the chance?”

January brought with it many things. A new year. A new leader in Washington, President Craig LaFount. A renewal of my communications with Jeremy—we still didn't agree on everything, but at least we were talking again, after I acknowledged he had a point about my boss's immigration jurisprudence. And Judge Stinson, back in chambers, sporting an impressive tan. And that wasn't all, as I learned at our first Monday morning meeting after the break.

“Welcome back,” the judge said. “I hope everyone had lovely holidays. Speaking for myself, I highly recommend the Four Seasons Hualalai as a place to spend Christmas and New Year's.”

We all laughed at the judge's joke: the notion that any of us, except for Larry, could possibly afford to stay at the Four Seasons during the most desirable (and expensive) week of the year.

“Before we go through all the cases, I'd like to mention two things. First, I'd like to thank you for working so diligently over the past two weeks. I realize that I've been working you much harder than most of my colleagues work their clerks, especially during the holiday season. And I gave you that extra project as well, the comprehensive review of my jurisprudence. I'm not at liberty to explain it fully at this time, but please know that I am aware of, and deeply appreciate, all of your hard work.”

I got the warm pleasing feeling I used to get from scoring a 100 on a spelling quiz in second grade. I loved the approval of authority figures—and the judge knew just how and when to dole it out. All the long nights
in chambers in late December and early January suddenly felt worth it.

“Second: what do we make of the California Supreme Court's ruling in the
Geidner
case?” asked Judge Stinson.

Whoa—
Geidner
was back? I had been so immersed in working on a complex trademark opinion that I hadn't even realized the California high court had issued its ruling on standing—which I hadn't even had the chance to read. Luckily, Loyola Larry played the stooge so I didn't have to.

“Is that the gay marriage case that got kicked to the California Supreme Court?” he asked.

“Yes,” said the judge with a patient smile. “The case that we certified to the Supreme Court of California so that they could decide whether the proponents of Prop 8 have the legal standing to defend the initiative in court.”

Suddenly it dawned on me: this was Harvetta's other holiday “gift” for me, the one that I'd have to “wait until the new year” to open. As a clerk to Justice Sherwin Lin of the California Supreme Court, she would have known that the court was about to issue its opinion. But was this really a gift? I wasn't so sure.

And neither was Larry: “Wasn't this the case that you wanted to go away, Judge?”

“When the case first came to the Ninth Circuit, the timing of its arrival struck me as … less than ideal,” she said. “And I had my doubts as to whether the Ninth Circuit, as a federal court, should be resolving what is arguably a matter of state law. But Audrey's excellent idea of certifying the standing question to the California high court bought us just enough time for the calculus to have changed. And we now have the political cover—er, shall we say guidance—of the California courts. So it now seems to me that the case presents … possible opportunities.”

The judge directed me to work with Brenda and the other judges' chambers on setting up a date for the oral argument in
Geidner
. That would be a major event. It might even get televised, as the Ninth Circuit did from time to time for certain high-profile arguments.

After the meeting ended, I went into James's office for our usual gossip session. I wanted to check my intuitions about some of the judge's comments against James's. I thought that I had a slightly sharper legal mind and better writing skills than James, having read some of his bench memos and draft opinions over the course of the clerkship so far, but I felt that he had stronger interpersonal skills and a superior ability to read people and situations.

“So,” I said, closing his office door and sitting down in one of his visitor chairs, “the judge's super-secret extra project—that has to be about her SCOTUS candidacy, right?”

“Definitely,” James said. “And remember her random trip to D.C. in December, the one that caused us to miss a Monday meeting? My guess is that she was meeting with the LaFount transition team. I was reading in the
Washington Post
that LaFount is moving very efficiently on possible appointments, even though he hasn't been inaugurated yet. And even though there's no vacancy on the Court right now, he probably wants to be ready to move at a moment's notice, especially given how elderly and ill Justice Greenberg is.”

“That makes sense. But what about the judge's reference to ‘possible opportunities' coming out of
Geidner
? Isn't a controversial issue like gay marriage just nothing but trouble?”

“Here's my read. Social conservatives aren't big fans of LaFount; they didn't turn out for him in the general election, and he barely won. He probably wants to figure out how he can win their trust and support—both for governing and for the next election—without alienating moderates. One way of doing that is through judicial nominations, especially Supreme Court nominations, which social conservatives follow closely.”

“And so what does that have to do with
Geidner
coming back to the Ninth Circuit? And with Judge Stinson having to deal with gay marriage? How is that a ‘possible opportunity' for her?”

“It's an opportunity for the judge to raise her profile, among social conservatives especially, and to advance her Supreme Court candidacy.

I'm assuming, of course, that she reaches the merits of the case and
rules against a constitutional right to gay marriage. That would allow Stinson to cast herself as a principled conservative on the ultra-liberal Ninth Circuit.”

“Ah …”

“Of course, she—or should I say
you
—would have to write the opinion very carefully. It would have to go against gay marriage as a constitutional matter, not a policy matter, and say that an important issue like this should be decided by the people, not unelected judges. That would be how to win over social conservatives without pissing off supporters of gay marriage too much. If you can pull that off, the judge will owe you—big-time.”

Exactly, I thought to myself. That's the kind of feat that would get Judge Stinson to recommend me without reservation for a Supreme Court clerkship. Or maybe land me a clerkship with the newly appointed Justice Stinson. Some newly appointed justices take their most favorite law clerks with them from the court of appeals to SCOTUS.

“Sorry we haven't had the chance to chat much lately,” I said to James. “I've just been toiling away on this trademark opinion. How was your trip back to San Francisco over Christmas?”

James looked down at his desk blotter for a second.

“I've had better holidays,” he said. “My girlfriend and I finally broke up. We had been heading in that direction over the past few months, but over the break we made it official.”

Ah, so James
was
straight. And now single. Jeremy might have been right about Judge Stinson's track record in immigration cases, but I was right about the far more important matter of James being straight. Not all well-dressed, well-groomed, well-mannered men are gay.

“Long-distance relationships can be hard,” I said to James. “I'm sorry to hear about your breakup.”

But was I?

Later in January, a few days before Craig LaFount's inauguration, an interesting post appeared on Beneath Their Robes.

 

President LaFount at Bat: Could It Be the Ninth's Inning?

By Article III Groupie

 

The Ninth Circuit is hard to beat—when it comes to getting reversed by the Supreme Court. Thanks in large part to outspoken liberals like Judge Sheldon Gottlieb and Judge Marta Solís Deleuze, the infamously left-wing appeals court is constantly getting benchslapped by SCOTUS. And many of the Supreme Court's reversals of the Ninth are summary reversals by a unanimous Court, joined even by such stalwart liberals as Justice Hannah Greenberg.

So this news might come as a surprise for some: as President LaFount prepares to take office, word on the street is that his two top picks for the next opening on the Supreme Court both hail from the Ninth Circuit: Judge M. Frank Polanski and Judge Christina Wong Stinson.

Of course, Judge Polanski and Judge Stinson are not the types of judges who give the Ninth Circuit a bad name. Both are Republican appointees who frequently find themselves dissenting from their colleagues on the left—and ultimately getting vindicated by the Supreme Court.

Even though the Ninth Circuit is the nation's largest appeals court in terms of the number of judges, the Ninth hasn't produced a justice in de
cades. So the Ninth may be overdue for having one of its members join the high court.

As between Judge Polanski and Judge Stinson, who has the edge? It's hard to say. Polanski has more judicial experience; he was appointed to the Ninth Circuit by President Reagan, while Stinson was appointed by President George W. Bush. Thanks to his longevity on the bench, he also enjoys the advantage of the “Polanski Mafia,” his network of powerful former clerks who are sprinkled throughout the upper echelons of Republican legal and political circles. These ex-Polanski clerks, scattered throughout the White House counsel's office, the Justice Department, and Capitol Hill, are fiercely loyal to their former boss and will no doubt push his SCOTUS candidacy.

But Stinson has her strengths as well. She is a few years younger than Polanski, which is a plus in an age when youth is sought not just in Hollywood actresses but in Supreme Court nominees, and she is an Asian American woman, also a definite advantage. If nominated to SCOTUS, Christina Wong Stinson would be the first-ever justice of Asian ancestry—an appointment that would surely play well in the Asian American community, a growing sector of the U.S. population and electorate. And if the next justice to depart the Court is Justice Greenberg, as many suspect, President LaFount will feel intense pressure to replace her with another woman.

But let's not count vacancies before they're hatched. Much will turn on who leaves the Court next, under what circumstances, and when. Stay tuned, chickadees!

 

Toodles,

Article III Groupie

 

The Beneath Their Robes post got picked up by Tom Goldstein of SCOTUSblog and Howard Bashman of How Appealing, two leading bloggers about the Supreme Court who were closely followed by the mainstream media. Goldstein and Bashman's write-ups in turn got picked up in the
Los Angeles Times
, which ran an article entitled “California Judges Are High Court Contenders.” Judge Stinson printed out the
L.A. Times
piece and circulated it at the next Monday meeting.

“Of course, I can't comment on speculation,” she said, as we passed the article around the table (although we had all read it already). “But it's certainly nice to be mentioned.”

“So it looks like it all started with the blogs—specifically, this Beneath Their Robes story,” Amit said.

“I noticed that,” the judge said. “I'm familiar with How Appealing and SCOTUSblog, but not with Beneath Their Robes. What do we know about it?”

“It's a new site, all about federal judges, but from a personality-focused rather than jurisprudential perspective,” I said. “It's entertaining, sometimes irreverent, quite insidery. The author, who calls herself ‘Article III Groupie,' is a woman working as an associate at a law firm who is obsessed with federal judges. And Supreme Court clerks—she clerked for a feeder judge and interviewed with some of the justices, but never got a SCOTUS clerkship herself.”

“She sounds like she could be you in a few years,” Judge Stinson said. “Except, of course,
you
still have a chance at clerking for the Court.”

An awkward silence ensued for a few seconds, which James broke.

“I'm not sure that Article III Groupie is who she says she is,” he said. “My guess is that this persona is just an attempt to conceal her true identity.”

“I disagree,” Amit said. “The bio makes sense in light of the content of the blog. She has the knowledge you'd expect of someone who clerked for a federal judge. The obsession with Supreme Court clerks seems genuine too. And it would be logical for someone who clerked recently to now be working at a law firm.”

“Regardless of who she is, I'm grateful for being mentioned in such a positive light,” Judge Stinson said. “Let's keep an eye on Beneath Their Robes going forward.”