How Appealing Extra

How Appealing Extra

Thursday, June 22, 2006

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June 22, 2006


By Lawrence Hurley
Daily Journal Staff Writer

WASHINGTON - A Republican proposal to split the 9th U.S. Circuit Court of Appeals into two is back from the dead.

The much-debated partition of the nation's largest circuit court, encompassing nine states and the Pacific territories, was shelved in December.

To the surprise of court-watchers, the proposed split will be before the Senate Judiciary Committee this morning.

For the first time, Sen. Arlen Specter, R-Pa., chairman of the committee, has come out in support of the proposal, making it more likely that the bill will advance to the Senate floor on a party line vote, according to experts. Republicans hold a 10-8 majority in the committee.

An aide confirmed Wednesday that Specter has put his weight behind the proposal to split the court, a long-cherished wish of conservatives in western states.

"It's a priority by the end of the year," the aide said.

The bill would establish a new 12th Circuit based in Phoenix and comprising Alaska, Arizona, Idaho, Montana, Nevada, Oregon, and Washington.

The trimmed-down 9th Circuit would comprise California, Guam, Hawaii and the Northern Mariana Islands.

The legislation would create five new judgeships for the 9th Circuit.

Supporters of the measure say the 24-judge 9th Circuit covers too large a geographic area, with a heavy caseload to match.

Among conservative activists, the court is seen as dangerously liberal.

The split is opposed by most of the court's judges, including Chief Judge Mary M. Schroeder, as well as the U.S. Judicial Conference.

Senate aides say the committee won't reach the bill today, but even its appearance on the agenda was unexpected.

Committee member Dianne Feinstein, D-Calif., will again lead opposition to the proposal.

She will begin by asking Specter for a full hearing on the matter, according to spokesman Howard Gantman.

Schroeder said a hearing should include discussion of budget and security implications.

"Our position has always been that this is a serious matter," she said. "It should not be passed without having a hearing."

Most observers thought the idea to split the 9th Circuit was dead, at least for this year, after Feinstein and her Democratic colleagues successfully fought off an effort in December to include a court-splitting provision in a budget bill.

If the Senate passes the latest bill, which is sponsored by Sen. John Ensign, R-Nev., the House is likely to follow suit in a flash.

The House has passed similar legislation several times in the past, with strong support from the chairman of the House Judiciary Committee, F. James Sensenbrenner Jr., R-Wis.

Arthur Hellman, a law professor at the University of Pittsburgh who is a 9th Circuit expert, said he was surprised by Specter's unheralded decision to back the bill.

"I thought he had been on the fence," he said.

The first sign that Specter had changed tack came last week when he addressed the issue at an after-dinner speech in Washington, subsequently reported on a conservative blog,

"It's an odd way of announcing a position on such an important piece of legislation," Hellman said.

Whether or not the committee passes the bill in the coming week depends largely on Specter, according to Carl Tobias, a law professor at the University of Richmond.

It isn't yet clear how strongly Specter supports the bill, which must jostle for attention among a number of high-profile issues before the committee, such as judicial nominations and a bill addressing the Bush administration's terrorism wiretapping program.

"If he is strongly in favor and pushes forward, it could be voted out of committee," Tobias said.

A party-line vote is most likely, he added, although some of the Republican members have not spoken out on the issue before, including Sens. Mike DeWine, of Ohio, and Lindsey Graham, of South Carolina.

Wednesday, June 07, 2006

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June 7, 2006


By Peter Blumberg
Editor, San Francisco Daily Journal

SAN FRANCISCO - With Congress once again overhauling the nation's immigration laws, the courts will have plenty of work in the years ahead.

It will fall to the third branch to decipher the fine print negotiated by lawmakers and interpret the new rights conferred on immigrants and the new powers given to immigration authorities.

Most of the heavy lifting will be done by the nation's 11 circuit courts of appeal, the end of the road for almost all foreigners seeking political asylum or facing deportation.

And most of the action happens in just one court. The sprawling, nine-state 9th U.S. Circuit Court of Appeals handles the lion's share of immigration appeals, and as a result, its 48 active and semi-retired judges exert a tremendous influence in the development of this area of the law.

One might think that with immigration politics heating up at the same time as partisan showdowns over judicial appointments, the two would collide.

But that wasn't the case with three 9th Circuit nominees who passed out of the Senate Judiciary Committee in the last two months.

None was confronted about their views on immigration.

Unlike other Bush appointees who have provoked a political firestorm because of their records on touchy issues, nominees Sandra Ikuta and Milan Smith, both Los Angeles lawyers, and Idaho state judge N. Randy Smith were deemed so uncontroversial that senators didn't ask them much of anything.

The absence of fireworks is not troubling in itself, but something is missing from the bigger picture: The confirmation process consistently overlooks immigration as a potential litmus test for a nominee's political acceptability.

Immigration is the most popular buzzword in American politics right now, but it remains virtually absent from public debate over who is fit for the bench.

Any would-be federal judge who has any known feelings about abortion will instantly trigger partisan warfare. Yet abortion isn't the issue drawing millions of people to march in the streets these days. And abortion, for all its symbolic import, generates just a tiny handful of cases for federal appellate courts.

Immigration, by contrast, makes up about half the caseload for the 9th Circuit.

True, there's nothing for judges to fight about in most of those appeals, which are usually approved or rejected by consensus on three-judge panels.

But on the tough cases, differing philosophies can make all the difference.

In the typical asylum case that comes to the 9th Circuit, an immigrant has failed to convince administrative judges who oversee the U.S. Citizenship and Immigration Services that he legitimately fears persecution in his home country.

The classic liberal judge will approach the case with sympathy. This judge wants to believe the immigrant has good reason to fear going home, but presumes she can't get a fair shake in the asylum process because she can't speak English or afford a decent lawyer to fight with insensitive bureaucrats.

The classic conservative judge approaches with skepticism. This judge has heard every phony story in the book, and because so many immigrants will say almost anything to win entry into the United States, the courts must respect administrative denials unless the immigrant makes a truly compelling case.

With some exceptions, 9th Circuit judges are closer to one camp or the other depending on who appointed them to the bench.

As illustrated in a 10-year study recently published by the journal Judicature, the hard cases tend to unite judges appointed by Democrats Jimmy Carter and Bill Clinton against judges appointed by Republicans Ronald Reagan and the two Bushes.

So what about future judges? How better to gauge someone's values then to ask where they set boundaries on people fleeing for their lives?

This could easily be done the same way that the Senate Judiciary Committee routinely grills court nominees to find out where they stand on landmark civil rights and privacy cases.

Senators might ask nominees, for instance, how much say courts should have in blocking the deportation of illegal immigrants who have committed serious crimes in their homelands.

That would force nominees to discuss a split 9th Circuit panel's 1997 conclusion that automatic deportation is wrong where an asylum seeker's past crimes could be seen as an attack on a repressive regime. Two years later, the U.S. Supreme Court voted 9-0 to overrule the 9th Circuit, saying it does not want judges to stand in the way of the government's executive power. INS v. Aguirre-Aguirre, 526 U.S. 415.

Or senators might ask nominees how they would feel about denying bail to a petty thief while he awaits deportation, and making him wait months, perhaps years, for a hearing.

That would force nominees to discuss the 9th Circuit's 1999 holding that a federal no-bail rule for non-citizens is a violation of due process. In this case, the 9th Circuit was again overruled when a narrowly divided Supreme Court held in 2003 that there are no exceptions to the mandatory detention policy - even for those who've been living legally in the United States almost their entire lives. Demore v. Kim, 538 U.S. 510.

And if senators can't resist introducing the a-word in confirmation hearings, they could ask 9th Circuit nominees to opine on a dandy of an unpublished ruling this week dealing with China's program of forced abortions as a method of population control.

Two liberal-leaning Clinton judges, Michael Daly Hawkins and Sidney Thomas, voted to grant asylum to a pregnant Chinese woman and her husband even though the child would probably be born before they are returned to their homeland. They reasoned that the couple may still fear persecution in the future, particularly if they are planning to have another child.

The dissenting senior judge, Nixon appointee J. Clifford Wallace, who is as conservative as they get on immigration, wrote that "the majority's reasoning is squarely at odds with the applicable statutory regime, separation of powers, common sense, and human biology."

Of course, there are two major obstacles to getting any court nominee to say they agree with one side or the other in such a case.

Hardly anyone in consideration for a 9th Circuit judgeship has ever had any immigration experience in their legal careers. The lawyers destined for federal appellate courts - typically prosecutors and partners from white-shoe firms - typically haven't spent much time representing immigrants. And even the nominees who've done stints as federal district judges have limited dealings with immigration matters because the appeals process generally skips over them.

The other difficulty, as illustrated vividly last fall by senators trying to get straight answers out of John G. Roberts and Samuel Alito Jr., is that nominees don't want to say anything that might get them in trouble.

Forced abortion in China? Common sense says don't touch it with a 10-foot pole.

The alternative is not to ask questions - and just hope for the best.

That's the approach senators apparently took with Jay Bybee, the conservative scholar from Utah who was a top adviser to George W. Bush's White House while serving as head of the Office of Legal Counsel for Attorney General John Ashcroft.

Citing executive privilege, Bybee's handlers stymied the Judiciary Committee's requests for his written opinions on matters of national security. That's how we didn't learn until after he was on the bench that Bybee had written the now-infamous "torture memo" that critics say was used by Bush to justify inhumane treatment of terrorism detainees.

But it appears that no one tried to pin down Bybee on immigration - and yet he had written a telling memo on that subject, an opinion that finally became public through a freedom of information request after Bybee had been confirmed for his lifetime seat on the 9th Circuit.

While at the Justice Department in 2001, Bybee wrote a memo justifying a controversial national policy change, one that would allow local police to arrest people during traffic stops if they were found to have committed civil immigration violations, such as overstaying a visa.

Whether that's a mainstream view or an extreme one depends on the eye of the beholder. Either way, Bybee's views on immigration enforcement would have made good fodder for the Senate Judiciary Committee - if someone had thought to ask.

© 2006 The Daily Journal Corporation.
All rights reserved.

Posted with permission. This file cannot be downloaded from this page. The Daily Journal's definition of reprint and posting permission does not include the downloading, copying by third parties or any other type of transmission of any posted articles.

June 7, 2006

Milberg's Troubles Foul Its Political Largesse
Washington's Ethics Scandal and Federal Indictment Makes Democratic Wellspring Untouchable

By Lawrence Hurley
Daily Journal Staff Writer

WASHINGTON - Politicians have for years enthusiastically accepted hundreds of thousands of dollars in campaign contributions from Milberg Weiss Bershad & Schulman, the securities class action powerhouse, and from the firm's current and former partners.

What a difference an indictment makes.

Three weeks ago, federal prosecutors formally charged Milberg Weiss and two partners, Steven Schulman and David Bershad, with illegally paying clients to sue major companies.

As a result, experts say campaign contributions from the two lawyers, and even those at the firm who weren't indicted, are now poison to those seeking public office.

With congressional elections approaching in which corruption is a major theme, candidates who have received contributions from the firm in the past - mainly Democrats - are falling over themselves to shun their erstwhile friends at the class action law firm.

Politicians running for state office in California are also giving their former donors the cold shoulder.

Even lawyers who don't work for the firm anymore are suffering to some extent from the chilling effect of the criminal investigation, the most obvious example being prominent Democratic donor William S. Lerach, who set up his own firm with some other Milberg partners in 2004.

"No-one wants to touch fraud or corruption," said Joan Claybrook, president of Washington-based watchdog Public Citizen.

A Milberg Weiss publicist and some of the firm's lawyers could not be reached for comment.

Take Sen. Bill Nelson, D-Fla., who is running for re-election in November.

Both Schulman and Bershad gave money to his 2006 campaign - around $4,000 each - but within 24 hours of the two attorneys being indicted, Nelson's team undertook damage control.

Campaign manager Chad Clanton said by phone from Florida that all Milberg Weiss-related money, including donations from partners who weren't indicted, was given to charity on May 19, the day after the indictments.

"Generally we try to avoid contributions in these types of situations," he added.

New York Attorney General Eliot Spitzer, a Democrat, followed a similar path by quickly returning the $125,000 he had received from various Milberg Weiss attorneys.

Ethics experts say the recent scandal involving lobbyist Jack Abramoff has prompted campaigns to take a careful look at where their money comes from this election cycle.

Abramoff pleaded guilty in January to charges of conspiring to corrupt public officials in a case that has uncovered a web of suspicious payments and has tainted by association several Republican members of Congress, including former Majority Leader Tom DeLay, R-Texas.

As a result of the investigation, which Democrats have seized upon as an election issue, campaign managers were possibly more alert to the potential for embarrassment when Milberg Weiss was indicted, according to ethics experts.

"Everyone is trying to keep their hands clean," said Mary Boyle, a spokeswoman for Common Cause, another Washington-based public interest group. "Right after Abramoff [was indicted] there were some members of Congress tripping over themselves to return money."

Senior partners at Milberg Weiss and its predecessor, Milberg Weiss Bershad Hynes & Lerach, have donated millions over the years to congressional candidates and committees across the nation and to various state politicians, most visibly in California and New York.

Most beneficiaries are Democrats, but some Republicans also benefited, as has the Republican National Committee.

Bershad alone has donated over $1 million to congressional campaigns and national political groups in the last decade, according to Federal Election Commission data.

In the current election cycle, he has, for example, donated small sums to Sen. Hillary Clinton, D-New York; Sen. Robert Menendez, D-New Jersey; and Rep. Jerrold Nadler, D-New York.

Last year, he gave the Democratic National Committee $3,000, and in previous election cycles he has donated money to the likes of Sen. Edward Kennedy, D-Mass.; Sen. John Kerry, D-Mass.; Sen. Arlen Specter, R-Pa.; and Sen. Barack Obama, D-Ill.

In 2004, he gave $50,000 to grassroots liberal group America Coming Together, which was formed to galvanize voters against President Bush's re-election.

Schulman, the other indicted partner, has been less generous over the years, but last year he covered his political bases by donating $2,000 each to the Democratic National Committee and the Republican National Committee.

Other attorneys at Milberg who weren't indicted - including founding partner Melvyn I. Weiss, a regular contributor to Democrats - may find their money unwelcome as the election season approaches.

Weiss gave about $4,000 to Clinton's campaign in 2005, and $3,500 to Nelson's. He also gave $26,700 to the Democratic Senatorial Campaign Committee and $5,000 to the Democratic National Committee.

Public Citizen's Claybrook said it's possible that future contributions from Weiss and other partners would be rejected simply because the Department of Justice chose to indict the entire firm, thereby tainting all its partners by association.

The indictment is likely to have the same effect in California, where Milberg Weiss, in both its forms, has been a major contributor, as has former partner Lerach, now of Lerach Coughlin Stoia Geller Rudman & Robbins in San Diego.

Last year, Milberg Weiss contributed $10,000 to Democrat Phil Angelides' campaign for governor, and $3,000 to his opponent, state Controller Steve Westly, also a Democrat. In 2004, the law firm gave more than $41,000 to Angelides' campaign and $25,000 to Westly's. When Westly ran for controller in 2002, the firm contributed $5,000 to his campaign.

Although the law firm has favored Democrats, it has also contributed to Republican lawmakers' campaigns. For example, in 2002, the firm contributed $1,000 to the campaign of Todd Spitzer, a former prosecutor and an Orange County Republican who successfully ran for state Assembly.

The lengthy shadow of the indictment is illustrated by the reaction of gubernatorial candidate Westly, who returned the $92,000 that Lerach and former and current Milberg partners donated, according to the Los Angeles Times.

Westly's rival Angelides bucked the trend, however, by keeping the $207,000 he received from Lerach and his colleagues.

As noted by Robert M. Stern, president of the Los Angeles non-profit Center for Governmental Studies, some campaigns may value the cash more than others, wherever it came from.

"It's going to hurt Democrats," he said of the indictment. "It's going to make it harder [for candidates] to run."

He suggested that those most damaged will be candidates in tight races. But even the drama of the criminal indictment doesn't appear to have stopped Lerach from playing one of his favorite sports.

As recently as May 23, just two weeks away from the California Primary, he contributed $10,000 to Friends of Joe Dunn, a committee set up to accept contributions to get Sen. Joe Dunn, D-Santa Ana, elected state controller.

Three days later, he gave $2,000 to a committee supporting the campaign of California Insurance Commissioner John Garamendi for lieutenant governor.

Lerach was traveling and couldn't be reached for comment.

His former colleagues at Milberg Weiss may find it harder to spend so freely, at least for now, according to Peter J. Henning, a law professor at Wayne State University in Michigan, who specializes in white-collar crime.

Henning added, though, that while politicians are quick to distance themselves from the "whiff of corruption," they also have short memories when money is at stake.

Partners and associates not directly involved in the case may find their cash is more appealing when the dust has settled.

In the meantime, Lerach and colleagues at his firm can probably ride the storm for one simple reason, according to Henning.

"People can't name Lerach's firm," he said. "People can name Milberg Weiss."

Daily Journal Staff Writer Linda Rapattoni in Sacramento contributed to this report.

Tuesday, June 06, 2006

© 2006 The Daily Journal Corporation.
All rights reserved.

Posted with permission. This file cannot be downloaded from this page. The Daily Journal's definition of reprint and posting permission does not include the downloading, copying by third parties or any other type of transmission of any posted articles.

June 6, 2006

High Court Finds School Desegregation Plans Ripe for Review

By Brent Kendall
Daily Journal Staff Writer

The U.S. Supreme Court on Monday jumped back into the divisive issue of race-based school admissions, agreeing to consider a controversial Seattle school choice plan that restricts students from attending certain public schools if the student's race would harm the school's racial balance.

The court also will consider a Kentucky case that raises similar issues.

"It's a really big deal that the Supreme Court is taking these cases," said Duke University law professor Erwin Chemerinsky.

The court, Chemerinsky said, has never considered the issue of racial preferences in student assignments for secondary and elementary schools.

In other news, the court announced that it would decide whether its landmark 2004 criminal sentencing ruling in Blakely v. Washington, 542 U.S. 296, applies retroactively.

The court ruled in Blakely that juries, not judges, must find virtually all facts that increase a defendant's sentence.

The San Francisco-based 9th U.S. Circuit Court of Appeals held that Blakely did not have a retroactive effect, and the high court will review that decision.

The court will hear arguments in the three cases this fall.

The school admissions cases will mark the first time the Roberts Court has considered the constitutionality of racial preferences. The justices last took up the issue in 2003 when they issued a pair of blockbuster rulings on affirmative action in university admissions.

In one of those decisions, Grutter v. Bollinger, 539 U.S. 306, a 5-to-4 court upheld the narrowly tailored use of affirmative action in the admissions process - an outcome determined in large part by Justice Sandra Day O'Connor, who retired in January.

"It's a different court now" said Chemerinsky, noting the additions of Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. "These cases ... could give a real indication of where the court is going to be on affirmative action."

The Pacific Legal Foundation, based in Sacramento, filed amicus briefs urging the court to hear the Seattle and Kentucky cases, and the conservative legal group is hoping the justices will decide that Grutter does not apply in the public school setting.

"School districts around that nation are relying on Grutter to really integrate their schools," said Sharon Browne, an attorney with the foundation. "In doing so, they're stereotyping children."

Browne said roughly 1,000 school districts nationwide had some sort of race-based assignment plan.

A high court ruling against the school districts, she said, could boost two of Pacific Legal's local lawsuits.

The foundation is suing the Los Angeles Unified School District over the use of race in its magnet school program and the Capistrano Unified School District for considering race in setting the district's attendance boundaries.

Both cases are in the early stages of litigation.

"It's a tremendous issue here in California," Browne said.

Despite Seattle's attempt to make all 10 of its high schools attractive to students and parents, five are significantly more desirable than the others, creating high demand for a limited number of slots in those sought-after schools.

Under the city's open choice school plan, adopted in 1998, Seattle uses a series of tiebreakers to decide which students get the most coveted school assignments.

The first tiebreaker gives preference to students who have a sibling at the school they want to attend. After considering the sibling issue, the school district then turns to race as a deciding factor.

If one of the high-demand high schools is racially imbalanced, the district gives preference to students whose race will help improve the school's diversity. Parents Involved in Community Schools v. Seattle School District No. 1, 05-908.

During the 2001 school year, roughly 10 percent of the city's students were assigned to a school based on the racial tiebreaker. The process benefited - and harmed - both white and minority applicants.

A divided en banc panel of the 9th Circuit upheld the plan last October on a 7-4 vote, rejecting a legal challenge filed by a group of Seattle parents.

In a 51-page opinion by Judge Raymond C. Fisher, the appeals court held that Seattle had a compelling interest "in securing the educational and social benefits of racial (and ethnic) diversity," and in ensuring that the city's schools did not replicate its segregated housing patterns.

Judge Carlos Bea, joined by three other conservative 9th Circuit judges, responded with a 47-page dissent that said Seattle's plan violated the Equal Protection Clause.

Bea said the district's racial tiebreaker "tramples upon the unique and valuable nature of each individual."

The Kentucky case centers on a school assignment plan in the Louisville area that calls for each school to have a black student population that is between 15 percent and 50 percent of the total student body. Meredith v. Jefferson County Board of Education, 05-915.

The 6th Circuit, based in Cincinnati, upheld Louisville's race-conscious assignments.

The Supreme Court's decision to review the cases came as something of a surprise.

In December, the court had declined to review a Massachusetts school-choice plan that restricted students from changing schools when the transfers would harm a school's racial balance.

The high court's 2003 affirmative action cases centered on the University of Michigan's admissions policies for undergraduates and law school applicants.

The Grutter decision, written by O'Connor, upheld the law school's race-conscious admissions process because race was one of many factors considered in the school's individual assessment of each student.

In Gratz v. Bollinger, 539 U.S. 244 (2003), a 6-to-3 court struck down the university's undergraduate admissions policy, which gave all minority applicants extra "points" on their admissions score. Former Chief Justice William H. Rehnquist, writing for the court, said the undergraduate policy was not narrowly tailored.

In the Blakely retroactivity case accepted Monday for review, the justices will be considering the case of Lonnie L. Burton, who was convicted of rape and robbery in Washington state.

A trial judge gave Burton an enhanced sentence after finding that Burton acted with deliberate cruelty and planned his crime with sophistication. Burton v. Waddington, 05-9222.

Burton's conviction became final before the Supreme Court decided in Blakely that judges could not increase a defendant's sentence based on their own fact finding.

The 9th Circuit threw out Burton's Blakely claim, deciding that Blakely created a new rule that did not apply retroactively on collateral review.

Ohio State University law professor Douglas Berman said he was surprised the high court took the case because the lower courts, both state and federal, have all agreed that Blakely did not apply retroactively.

Berman, a criminal sentencing expert, said "a lot of hell could break loose" if the justices declare Blakely retroactive.

But, he said, it's just as possible that all hell won't break loose because the court's ruling may affect only a limited number a cases.

Friday, June 02, 2006

© 2006 The Daily Journal Corporation.
All rights reserved.

Posted with permission. This file cannot be downloaded from this page. The Daily Journal's definition of reprint and posting permission does not include the downloading, copying by third parties or any other type of transmission of any posted articles.

June 2, 2006

Chief Judge to Set Up Panel for 7-Year-Old Misconduct Case

By Amelia Hansen
Daily Journal Staff Writer

SAN FRANCISCO - More than three years after a federal judge in Los Angeles was accused of giving special treatment to one of his female probationers, the chief judge of the 9th U.S. Circuit Court of Appeals has ordered a special committee to investigate the charges.

Filed in court last week, but not yet made public by the circuit, Chief Judge Mary M. Schroeder said she would appoint a committee to look into whether 81-year-old U.S. District Judge Manuel L. Real committed misconduct in 1999.

The decision comes as a welcome surprise to those who have followed the case, which has now been reviewed a total of five times by Schroeder and 15 other judges - including, most recently, a panel appointed by the nation's highest judicial oversight committee.

Schroeder herself has come under fire for dismissing the complaint twice as "not substantiated" and failing to appoint a special committee to investigate the complaint in the first place.

Recent news reports on the Real saga have generated fodder for Republican lawmakers who have proposed an "inspector general" position to monitor and police ethical lapses by the federal judiciary.

In the four-page order she filed last week, Schroeder acknowledged the concerns aired in April by members of a Judicial Conference who took her to task for failing to get to the bottom of the allegations that Real abused his position.

Schroeder wrote that the committee she's forming should "conduct an investigation as extensive as it considers necessary."

"The general public, the judiciary, and the district judge involved all have an interest in a fair investigation and an appropriate resolution of the matters alleged," she wrote.

Arthur Hellman, a law professor at the University of Pittsburgh and an expert on the 9th Circuit, said the order shows that Schroeder is sensitive to maintaining the integrity of the disciplinary process.

Given the history of the Real case, Hellman said, appointing the special committee is the "only way to provide that reassurance."

Real presided over the criminal fraud case of Deborah M. Canter, who got into financial trouble after she and her husband separated in the late 1990s.

Real first came under fire when he took the unusual step of withdrawing Canter's case from bankruptcy court and then barred the state from evicting Canter from the home she had shared with her ex-husband, Gary.

His family appealed to the 9th Circuit in 2002. The court ruled Real had abused his discretion and it allowed Canter's eviction.

But Venice-based civil rights lawyer Stephen Yagman filed a citizen's complaint against Real.

Yagman alleged that the judge "acted inappropriately to benefit an attractive female" - Deborah Canter - and he asked for an investigation into their relationship.

Yagman's complaint initially went to Schroeder, as chief judge of the 9th Circuit, who dismissed it.

In last week's order, Schroeder explained that she did not appoint a special committee to investigate the alleged misconduct because the complaint consisted of a "suggestion of a salacious motivation" on behalf of the district judge.

That suggestion, she wrote, was "entirely unfounded."

However, the 9th Circuit's 10-member Judicial Council found other evidence of wrongdoing - including an indication that Real had improper ex parte communication with Canter.

When the case went back to Schroeder a second time, she again dismissed the complaint. On the second go-around, the council went along with her.

A clerk who answered the phone in Real's chambers Thursday said the judge was not available and declined to provide contact information for his legal counsel.

Schroeder's May 23 order re-opening the case came six days after Yagman filed a formal complaint accusing her of failing to uphold her disciplinary duty.

Yagman dropped his complaint on May 26.

"It is in the interest of everyone who participates in the judicial system that the rules be followed," Yagman said Thursday. "They are now being followed and that's a good thing."

Schroeder and court staff would not answer specific questions Thursday about the next step.

Schroeder, through her press office, released only a written statement:

"Federal statute requires me, as well as 'any person in any proceeding,' to maintain the confidentiality of 'all papers, documents, and records of proceedings related to' complaints alleging judicial misconduct, subject only to specified limited exceptions,'" Schroeder said.

"I am therefore not able to provide any public comment at this time. I urge all persons subject to this statute to observe its provisions."

Hellman lamented the judiciary's general reluctance to make its process known to the public.

"I still think it's a shame the judiciary hides these orders," he said. "They don't let the public see how seriously they take these complaints."

"Judges may stumble occasionally, but it shows they're basically trying to do the right thing."