Wardlaw Cut a Fast Track to Center of 9th CircuitBy Amelia Hansen
Daily Journal Staff Writer
February 08, 2007
PASADENA - A turn of turtles inhabits Kim Wardlaw's chambers.
Sparkling and vibrant, the small figurines appear on the judge's bookshelf and desk. They are unlikely visitors in a world filled with legal documents and books.
"They remind me to slow down, to be thoughtful," Wardlaw said. "They remind me that everything doesn't have to be done today."
In Aesop's terms, Wardlaw is certainly more hare than tortoise.
Appointed to the 9th U.S. Circuit Court of Appeals by President Clinton in 1998, Wardlaw carries a full caseload, serves on a number of community boards and is the mother of two teenagers - a soccer mom who drives a Jaguar.
"Family's first," said Wardlaw. "Well, family and work are both first. But family seems to happen on weekends and nights."
Efforts to slow down, she said, help her appreciate her full and busy life.
At 52, Wardlaw is the youngest member of the court. (The circuit's newest member, Sandra Ikuta, was born a week earlier.) She has nearly a decade of experience on the 9th Circuit under her belt and has written some of the court's most significant opinions.
Although she looks like a liberal in several of her high-profile opinions, many attorneys place Wardlaw at the center of the court.
"In a relatively short career, she has decided some of the circuit's most important cases," said Mark Rosenbaum, legal director for the American Civil Liberties Union Foundation of Southern California. "She's a brilliant jurist who seeks practical solutions to complex legal and social problems.
"She's exactly who Hollywood would cast to play a federal judge."
People may not know it by looking at her, but the golden-haired Wardlaw is half Mexican.
She is also, according to a letter she just received in the mail, the first Hispanic American woman appointed to a federal appeals court.
Kim Anita McLane Wardlaw was born in San Francisco in 1954.
Her father, a salesman, was Scotch Irish; her mother, an accountant, was born in the U.S. to Mexican parents.
Her parents' marriage incited disapproval from both sides of the family. And her mother, Wardlaw said, faced some "pretty serious discrimination."
Even though she identified equally with her Anglo and Latino backgrounds, Wardlaw said she was ostracized for being the only Mexican girl in elementary school.
"I saw a lot of unfairness and injustice growing up," she said. "I have a strong sense of justice and a strong moral compass.I've always had that."
Siding With Underdogs
Wardlaw certainly has sided with the dispossessed in some of her most noted rulings.
In a case that received national attention, Wardlaw ruled that it's cruel and unusual punishment for police to arrest homeless people at night when they have nowhere else to go. Jones v. City of Los Angeles, 444 F.3d 1118 (2006).
The case, brought by six homeless people, challenged a city ordinance which criminalized sitting, lying or sleeping on public streets and sidewalks.
Lawyers for the homeless plaintiffs, including Mark Rosenbaum, argued that the ordinance violated their clients' constitutional rights because they were unable to obtain shelter on nights they were arrested.
In a 2-1 ruling, the court agreed.
"[J]ust as the Eighth Amendment prohibits the infliction of criminal punishment on an individual for being a drug addict," wrote Wardlaw, "the Eighth Amendment prohibits the city from punishing involuntary sitting, lying, or sleeping on public sidewalks that is an unavoidable consequence of being human and homeless without shelter in the City of Los Angeles."
Senior U.S. District Judge Edward C. Reed of Nevada, sitting by designation, joined the opinion; Judge Pamela Ann Rymer dissented.
Benjamin Y. Kim, a Torrance-based disability rights lawyer, represented a disabled student in a case against his school district. Park v. Anaheim Union High School District, 464 F.3d 1025 (2006).
Kim said Wardlaw was the only judge on the panel with a deep understanding of the Individuals with Disabilities Education Act (IDEA).
"She was very insightful," Kim said. "It's really rare that a federal district judge or appellate judge would have that depth of knowledge behind a civil rights statute like IDEA."
In another case, Wardlaw and a colleague reversed a California three-strikes sentence on constitutional grounds. Ramirez v. Castro, 365 F.3d 755 (2004).
In the split decision, Wardlaw wrote that a sentence of 25 years to life for a three-time shoplifter amounted to cruel and unusual punishment under the Eighth Amendment.
Isaac Ramirez's third crime had been stealing a $199 videocassette recorder from Sears - which he promptly took back.
Senior Judge John T. Noonan joined Wardlaw's opinion, while Judge Andrew J. Kleinfeld authored a dissent.
Sympathy for Asylum Refugees
Wardlaw has strong views when it comes to asylum cases.
Wardlaw cites among her significant decisions a case involving a Chinese woman who was forced to have an abortion after she became pregnant out of wedlock.
Writing for a unanimous panel, Wardlaw ruled to grant the woman's asylum petition. Ding v. Ashcroft, 387 F.3d 1131 (2004).
In a split decision last fall, Wardlaw decided a Sri Lankan man accused of being a Tamil Tiger - a terrorist organization at war with the Sri Lankan government - deserved a second chance to prove he was eligible for asylum.
Visuvanathan Rudrakumaran, the man's New York attorney, said he felt Wardlaw was a judge who wanted to make sure "justice is absolutely done."
"She did not defer to the government assumption," said Rudrakumaran. "Given the current context, that's really remarkable."
Wardlaw's opinion, however, reflects her concern for both sides of the case. The judges had sympathy for the government and the immigration court's suspicion that the man might be a member of a terrorist organization, Wardlaw wrote
"[A]s judges, we are charged with following the law - not our suspicions - and we must, therefore, grant Suntharalinkam's petition and remand to the [Board of Immigration Appeals] for consideration,"she wrote.
Santa Monica civil rights attorney Carol Sobel, an attorney representing the six homeless plaintiffs in Jones, said Wardlaw's opinion in that case was an extremely careful and well-reached decision.
Sobel said Wardlaw's decision was clearly important. Part of what made it significant, Sobel said, is that it was based on an extraordinary factual record - over 700 pages and 50 declarations, all assembled by the plaintiffs' lawyers.
"If anything, the city assumed that facts would not matter in the case," Sobel said. "Judge Wardlaw wrote in her decision that facts are everything in this case."
Sobel has won and lost in Wardlaw's courtroom. She doesn't like all of the judge's decisions, but said Wardlaw asks pertinent questions to attorneys on both sides of a case.
"She is always extremely well prepared and very smart," Sobel said.
UCLA Law Alumna
Wardlaw's natural curiosity and intelligence was evident at an early age.
She spent her free time reading classics like "Little Women," "The Diary of Anne Frank," "Black Beauty," and "To Kill a Mockingbird" - her favorite.
"I still think reading is the key to success," she said.
The first in her family to go to college, Wardlaw studied communications at UCLA, earning her degree in 1976.
She was accepted to UCLA School of Law the same year, already quite clear about her career goals.
"She said her ambition was to be a federal judge," said Kenneth L. Karst, professor emeritus at the school. "I must say, I thought for anybody to have that ambition was not the easiest thing to do. But she delivered on that promise."
Karst, who has stayed in touch with Wardlaw since her graduation, remembered her as a confident student who spoke out in class.
Karst also has vivid memories of another student, Alex Kozinski - Wardlaw's colleague on the 9th Circuit, who graduated from the law school a few years before she did.
"Nobody was really surprised when Alex spoke up in class," Karst said. "He spoke up a lot."
Voted a 'Superhottie'
Kozinski has since recruited Wardlaw to participate in his colorful antics.
A few years ago, the irreverent "Underneath Their Robes" Web site named Wardlaw the "No. 2 Superhottie" female of the federal judiciary.
Kozinski - who not only nominated himself, but also mounted an aggressive campaign to win - was named the No. 1 Superhottie on the men's list.
Wardlaw agreed to an interview with the site's author, which remains posted online.
"It was done with quite a sense of humor," said Wardlaw. "Judge Kozinski asked me to do it."
And how does she feel about being a superhottie?
"That is embarrassing to me," Wardlaw said. "When my children's high school friends Google me, they find that. And then they come over to the house and are inevitably disappointed."
Wardlaw graduated fifth in her class at UCLA in 1979. She was honored as an outstanding graduate and a member of Order of the Coif.
She went on to serve as a legal extern for 9th Circuit Judge Joseph T. Sneed and a clerk for U.S. District Judge William P. Gray.
In 1980, she was hired as an associate at O'Melveny & Myers,one of Los Angeles' biggest firms.
"She was disarming in the sense that she was petite and always very attractive. She seemed the stereotype of a demure young lady," said Henry Thumann, a partner in O'Melveny's Washington, D.C., office.
"But then you realized, here's this Rock of Gibraltar - a single-minded, effective and very goal-oriented woman."
Wardlaw spent 16 years at the firm, six as an associate and 10 as partner.
A general litigator specializing in media defense and intellectual property, Wardlaw represented a group diverse of clients including Bausch & Lomb Inc., the E. & J. Gallo Winery and the Academy of Motion Pictures Arts & Sciences.
Her time at O'Melveny was important for another reason: It's where she met her husband, Bill Wardlaw.
Now in private equity with Freeman Spogli & Co. in Santa Monica, Bill Wardlaw also began his legal career at O'Melveny.
Considered a powerhouse in Los Angeles city politics, Wardlaw has chaired numerous Democratic campaigns, including Clinton's California presidential campaigns.
Prior to joining the bench, Kim Wardlaw spent time with her husband in the political trenches.
In 1992, she went to the Democratic convention as an elected delegate for Clinton, when he was still governor of Arkansas. Wardlaw also served as Hillary Clinton's scheduler in California.
Wardlaw keeps several framed photos of the Clintons - including one of her jogging with President Clinton - in her chambers.
"I don't miss politics as they are waged today," she said.
Clinton appointed Wardlaw to the U.S. District Court in the Central District of California in 1996; he elevated her to the 9th U.S. Circuit Court of Appeals two years later.
An Unpredictable Centrist
Despite her Democratic background, Wardlaw is often viewed as being at the center of the court - or to the right of center, according to some attorneys.
Wardlaw sees herself as part of a group of moderates on the court - some appointed by Democratic presidents, others by Republican presidents.
"I try to follow the law to the best of my ability," she said. "There are several of us that you can't predict."
Last year, Wardlaw wrote the unanimous opinion denying the final legal appeal of convicted murderer Clarence Ray Allen. Allen v. Ornoski, 435 F.3d 946 (2006).
Seventy-six-year-old Allen, sentenced to death for a triple-murder in Fresno in 1980, was at that time the oldest murderer on death row. His attorneys argued it would be cruel and unusual punishment to execute him because of his age and physical infirmities.
Denying the stay for execution, Wardlaw wrote that Allen had "not demonstrated substantial grounds upon which relief may be granted."
Allen was executed Jan. 17, 2006.
In another case, Wardlaw held that the U.S. government was within its rights to search an importer's cigarette shipment because the cigarettes had been stored in a foreign trade zone. USA v. 4,432 Mastercases of Cigarettes, 448 F.3d 1168 (2006).
Customs officials determined the cigarettes were counterfeit, socked the importer for not paying taxes and seized the 44 million cigarettes, worth an estimated $5.5 million.
Eric Honig, the Marina del Rey lawyer representing the importer, said he was not happy with Wardlaw's result, but acknowledged the amount of work the judge put into the case.
"She's very intelligent, very deliberate, very thorough," Honig said. "She covers the subject matter very thoroughly."
Mirah Horowitz clerked for Wardlaw from 2000-01.
"I don't know how to say this, but she doesn't take shit," said Horowitz, now counsel for Sen. John Kerry in Washington, D.C.
Horowitz recalled watching Wardlaw during oral arguments in an en banc case involving the legality of a lawyers' account established to pay for legal services for the poor.
Prior to oral arguments, Wardlaw realized half the plaintiffs in the case no longer had standing. When she brought this point up with the plaintiffs' attorney, he dodged the question, Horowitz said.
"She just didn't let go," Horowitz said. "She's tough, smart and really thinks about the questions."
Writing for the en banc majority, Wardlaw later ruled that Interest on Lawyers' Trust Account (IOLTA) did not violate the Constitution. Washington Legal Foundation v. Legal Foundation of Washington, 271 F.3d 835 (2001).
In 2003, the U.S. Supreme Court affirmed Wardlaw's opinion in a 5-4 ruling.
Horowitz, who said she considers Wardlaw one of her closest friends, has also seen the judge's lighter side.
The two were having lunch in 2001 when U.S. Supreme Court Justice Stephen Breyer called to offer Horowitz a clerkship.
"I told her I got the job," Horowitz recalled. "She ordered champagne and then we went shopping."