A Judicial Review: Justice Kim McLane Wardlaw

By Marc Seltzer; originally published on May 6, 2009, at politicsunlocked.com

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The selection of a Supreme Court nominee raises some obvious questions. Among them is one overall concern: will the nominee be liberal, centrist or conservative?

So called “liberals” on the Supreme Court have extended greater constitutional rights in the areas of a woman’s right to have an abortion and criminal defendants’ rights to fair process than their critics accept. “Conservative” justices have hesitated to extend constitutional protections to individuals and have at times limited the government’s ability to impose restrictions on business interests. These hot-button issues are a small fraction of the work of the Court, but they do draw lines in the sand.

Centrists have been more likely to recognize the values asserted by both liberal and conservative positions and look for justice within the complexity of conflicting rights and values.

Near the top of the list of potential Supreme Court nominees is Justice Kim McLane Wardlaw of the Ninth Circuit Court of Appeals. Justice Kim McLane Wardlaw attended UCLA Law School and began her distinguished legal career in private practice. After 16 years at the Los Angeles office of O’Melveny & Myers, she was nominated by President Clinton to the federal judiciary. She worked first as a district court judge and then as a justice of the 9th Circuit Court of Appeals, where she is today.

Justice Wardlaw was supported by Democrats and Republicans in her confirmation hearings and was initially confirmed by the Senate Judiciary Committee by unanimous vote. Then, the entire Senate confirmed her unanimously. On nomination to the U.S. Court of Appeals position her Senate Judiciary hearing support was 17-1. Then the entire Senate again confirmed her unanimously.

Justice Wardlaw’s mother is Mexican-American and her father Scottish, which made her the first Mexican-American justice to be appointed to the U.S. Court of Appeals. She would also be the first Mexican-American to serve on the U.S. Supreme Court if President Obama selected her and her nomination was confirmed.

Justice Wardlaw’s positions demonstrate centrist reasoning and pragmatism. The following brief summaries of four of her opinions demonstrate that she does not always take a classically liberal or conservative view. In Card v. City of Everett, the Justice penned a majority opinion finding that a monument displaying the Ten Commandments on city land did not constitute the city’s endorsement of a religion in violation of the First Amendment “freedom of religion” restrictions.

In another case, Roe v. City of San Diego, Wardlaw disagreed with the Ninth Circuit majority and refused to extend constitutional protection to a police officer who was fired for selling adult videos of himself. The U.S. Supreme Court agreed with Wardlaw’s dissent and reversed the Ninth Circuit decision.

In Jones v. City of Los Angeles, Wardlaw wrote that arresting homeless people for occupying public property, when other shelter was not available, violated the Eighth Amendment’s prohibition against cruel and unusual punishment.

Finally, in Allen v. Woodford, Wardlaw determined that a defendant sentenced to death would not receive a new trial despite his counsel’s failures in representation because there was overwhelming evidence of guilt such that a jury would still have sentenced him to death.

Justice Wardlaw may not satisfy those who desire certainty that every decision will reflect their political philosophy. But she is a respected moderate with tremendous high-level legal experience and the endorsement of Democrats and Republicans alike.