Metropolitan News-Enterprise


Friday, September 23, 2005


Page 1


Ninth Circuit’s Callahan Reportedly Vetted for U.S. High Court


By KENNETH OFGANG, Staff Writer/Appellate Courts


Ninth U.S. Circuit Court of Appeals Judge Consuelo Callahan is under consideration for appointment to the U.S. Supreme Court seat being vacated by Justice Sandra Day O’Connor, the New York Times reported yesterday.

Citing unnamed “Republican strategists,” the newspaper said Callahan and D.C. Circuit Judge Janice Rogers Brown are among several candidates, all black, Hispanic, and/or female, at whom the president is looking. Callahan was the first Hispanic, as well as the first woman, ever to serve as a judge of the San Joaquin Superior Court.

Callahan was not available for comment at her Sacramento chambers yesterday, but Ninth Circuit Chief Judge Mary M. Schroeder said she was “not surprised that Connie would be on the list.”

‘Go West’

Reiterating a theme she sounded earlier this month at the California Women Lawyers dinner held in conjunction with the State Bar Convention, Schroeder said she “told the president to go west and look for qualified women” to succeed O’Connor, who is from Arizona and was the first woman justice in Supreme Court history.

Schroeder declined to comment on Brown, until recently a California Supreme Court justice, noting that the two had never served together.

Callahan, 54, was appointed to the Ninth Circuit two years ago after seven years of service on the Third District Court of Appeal, to which she was named by then-Gov. Pete Wilson in 1996.

Wilson had previously named her to the San Joaquin Superior Court in 1992. Prior to that appointment, she served six years as a San Joaquin County Municipal Court commissioner.

She graduated from Stanford University in 1972 and from McGeorge School of Law three years later. She clerked for the public defender in Sacramento before her admission to the bar, then became a Stockton deputy city attorney in 1975 and moved to the San Joaquin County District Attorney’s Office the following year, remaining there until appointed to the commissioner’s position.

She was active in California Judges Association programs and has served on the association’s executive board. She has also been honored for her work in mediation, child abuse and sexual assault prevention, and provision of legal services for the poor.

As a state appellate justice, Callahan did not write extensively on federal constitutional and statutory issues.

The Alliance for Justice, in a memo issued prior to her Ninth Circuit confirmation, described her as “conservative and very ‘tough’ on criminal defendants,” but noted her “bipartisan support in California.” The liberal advocacy group, which did not take a position on the nomination, said “a more extensive review would determine whether her overall record should cause concern.”

The memo cited cases in which she concurred, including one affirming dismissal of a sexual harassment case filed by corrections officers against a prison warden who allegedly granted preferential treatment to other officers with whom he had affairs. That ruling was later overturned by the California Supreme Court.

Affirmative Action

In other cases, Callahan joined in overruling a trial court to knock down several state affirmative action programs, and helped reverse a trial court’s grant of custody and visitation rights to a lesbian ex-partner of a woman with whom she had a child through artificial insemination.

But the memo also noted Callahan joined her colleagues in holding that Catholic Charities couldn’t exclude contraceptives from its employees’ prescription drug health benefit—a ruling later upheld by the state high court—and that she has never issued a published opinion dealing with abortion choice.

On the Ninth Circuit, to which she was confirmed in May 2003 by a vote of 99-0, Callahan has aligned herself with the court’s conservative wing, joining in a number of dissents from denials of en banc review.

She herself authored an opinion, joined by seven of her colleagues, criticizing a panel decision that reinstated a lawsuit seeking to hold gun makers and a distributor responsible for the 1999 shootings by white supremacist Buford Furrow in the San Fernando Valley.

Callahan said that Judge Richard A. Paez, who wrote the majority decision for the three-judge panel, relied on a “creative interpretation” of California law to decide that liability was not barred by a since-repealed statute immunizing gun manufacturers in products liability actions. Paez said that law did not address the plaintiffs’ theories of negligent marketing and distribution.

If California law were “so unsettled” as to permit the interpretation adopted by Paez and Judge Sidney Thomas, Callahan declared, the proper course for the Ninth Circuit would have been to certify questions to the state’s Supreme Court for guidance.

Under Paez’s reasoning, Callahan said, “General Motors could be sued by someone who was hit by a Corvette that had been stolen by a juvenile. The plaintiff would allege that General Motors knew that cars that can greatly exceed the legal speed limit are dangerous, and through advertising and by offering discounts, it increased the attractiveness of the car and the number of Corvettes on the road and thus increased the likelihood that a juvenile would steal a Corvette and operate it in a injurious manner.”

Judges Alex Kozinski, Diarmuid F. O’Scannlain, Andrew J. Kleinfeld, Ronald M. Gould, Richard C. Tallman, Jay S. Bybee, and Carlos T. Bea joined in Callahan’s opinion.


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