Most every day this month, federal 9th Circuit Judge Claudia Wilken has gazed out over her Oakland courtroom and found it packed with a motley crowd of environmental activists from all over Northern California. They were here to back Darryl Cherney, whose civil-rights claim against the Oakland Police Department and the Federal Bureau of Investigation went to trial in April, a dozen years after he was accused of knowingly transporting a pipe bomb that nearly killed him and fellow Earth First activist Judi Bari.
Dennis Cunningham, Cherney’s lead attorney, had hoped to use the trial as an all-purpose indictment of the FBI, from the Palmer Raids to J. Edgar Hoover to the Black Panther Party and beyond. Wilken made it clear long ago that he would not be allowed to do any such thing. Cunningham’s case would have to be against specific law enforcement officials. He would not be allowed to prejudice the jury, which began deliberations last Friday, with scary stories from decades past.
But the lawyer was undaunted. With witness after witness, his questions started to wander toward the forbidden dark days. Finally, as her limit was reached, Wilken was forced to intervene. “You may sit down, Mr. Cunningham,” she said, pointedly. He began to protest, and Wilken was forced to raise her voice: “You may sit down!”
It was hard not to feel for Wilken at that moment. Here was Cunningham slipping illicit innuendos to the jury, the crowd all but cheering him on, while she was forced to play the part of a schoolmarm. It’s apparent that such is not her nature. Wilken, who appears younger than her 52 years, is quick to laugh at a witness’ witty reply to a hostile line of questioning, and tends to scorn the traditional courtroom fripperies of which so many jurists are fond. She doesn’t require people to rise when she enters the courtroom. And last week, Wilken let Cherney strap on his guitar and serenade jurors with one of his old numbers in order to prove a legal point. The peanut gallery had to suppress laughter, but the judge took the musical argument at face value, and didn’t even crack a smile.
Since she was elevated to the bench by President Bill Clinton in 1993, Wilken has heard more than her share of key cases concerning issues dear to the heart of the politically active East Bay. In 1995, after hearing arguments from the ACLU, she mostly overturned Berkeley’s Prop. O, which imposed strict limits on panhandling. In 1998, she issued a ruling that shut down Free Radio Berkeley, the flagship of the micropower radio movement.
Wilken’s entry in Almanac of the Federal Judiciary — a yearly gossip sheet of the legal industry — overflows with anonymous praise from attorneys who have argued cases before her: “She is as smart as can be.” “I consider her to be very fair.” “She has lots of dignity and shows respect for others in her courtroom.” A few comments, though, reflect the view that many legal practitioners and pundits across the country hold of the liberal 9th Circuit and sometimes Wilken in particular: “She has made some wrong decisions in my view,” says one. “She is a very activist judge.”
Lawyers come in a variety of hues, and a bright young law student may aspire to become any one of them — from the freewheeling class-action specialist with a private jet to the underpaid and overworked public defender who dedicates her life to aiding the downtrodden. Lawyers are paid to fight, and when they win they can bask in the glory of knowing they outfoxed their opponents.
Judges are quite the opposite. As their standardized uniform suggests, they are meant to be neutral arbiters of the law. In theory, at least, their own biases and politics do not enter into their decisions. Given that, it’s odd that so many successful attorneys would consider an appointment to the bench a big career move. It’s as if Kobe Bryant were to harbor fantasies of someday becoming a referee.
It’s a thankless job. When a case prevails in court, the victor rejoices in the justness of his cause. But when it gets shot down, one person is most likely to be blamed: No matter how heartfelt their commitment to jurisprudence, judges must constantly endure charges from lawyers, the public, even their colleagues, that their rulings stem from personal prejudice.
Wilken’s most controversial ruling to date concerned the constitutionality of Prop. 140, the term-limits measure passed by California voters in 1990. In ’95, on the verge of being termed out, state Assemblyman Tom Bates (who recently threw his hat into the Berkeley mayor’s race) decided to challenge the initiative in court.
The judge’s 1997 ruling in the Bates case is lengthy and learned. Remarkably, it’s also a good read. She starts off by considering the history of term limits in the United States. “The movement to impose legislative term limits is a recent phenomenon,” she notes, “although one with some precedents in the eighteenth and nineteenth centuries.” In colonial America, there was a custom of “rotation” — representatives were expected to step down after a period of time, though they might serve again after someone else took a turn.
California’s limits were different, and stood out from others that had been considered by the Supreme Court in that they imposed a lifetime ban after a few stints in the same office. This severely inhibited a citizen’s right to vote for his candidate of choice, a right guaranteed — with few exceptions — by the Fourteenth Amendment. Wilken’s decision inspired a spate of attack editorials: The Wall Street Journal called it “an incredible act of judicial arrogance.” The Las Vegas Review-Journal charged Wilken with “legislating from the bench in a crass attempt to thwart the people’s will.”
A few months later, a full panel of the Ninth Circuit Court of Appeals overruled Wilken. Several of the judges wrote their own opinions scolding her for entertaining the case at all. Their reasoning: the California Supreme Court had already ruled on a similar case, Legislature v. Eu, in which it upheld Prop. 140. Wilken had considered this in her ruling, but argued that, in the Eu case, “no trial was conducted and no lower court examined the parties’ legal or factual contentions.”
If there’s one issue about which Wilken probably would not resent being labeled an activist, it’s Berkeley High School. She and her husband, attorney John True, have two children — twelve and sixteen — and she takes an active role in the public schools. The judge serves as the chair of Berkeley High’s Site Council, which allocates state funds for teacher training and curriculum improvements.
When the debate over transforming Berkeley High into a number of small “learning communities” was raging last fall, Wilken was a stalwart in favor. She signed petitions, spoke at school-board meetings, and, along with hundreds of others, danced down the aisles of the Berkeley High auditorium during a Saturday rally. “She’s passionate about public education,” says Kriss Worthington, who represents Wilken’s South Berkeley neighborhood on the City Council. “Someone who makes a judge’s salary could easily afford to put her kids in private school. But she wants them to be exposed to people of different races and income levels.”
Wilken has her professional admirers too. Among them is J. Tony Serra, the renowned radical defense attorney who was portrayed by James Woods in the movie True Believer. He believes that most attorneys who become judges do so out of a desire for power — “to fulfill psychological needs,” Serra says. He considers Wilken an exception. “I think it’s because she’s got a very powerful intellect that wasn’t being fulfilled as an advocate,” he says.
Since he has a case before her at the moment — he’s part of Cherney’s team — Serra’s praise could be considered suspect. But it does make sense. An extraordinary range of matters passes through Wilken’s courtroom. Last June, she ruled that oil companies with federal offshore-drilling leases couldn’t start drilling without permission from the California Coastal Commission. In January, she found that a Marin County filmmaker did not violate his neighbor George Lucas’ intellectual property rights when he made an animated, pornographic Star Wars parody. And as her ruling in the Bates case shows, Wilken matches this breadth with depth. Bright people everywhere dream of writing an essay that affects the course of history. Wilken, on matters both large and small, writes several every year.
And on good days, she has the pleasure of hearing intelligent people make interesting arguments. Late last month, after the Bari trial had adjourned for the day, attorneys for the sons of Lakireddy Bali Reddy, the millionaire Berkeley landlord who pleaded guilty to importing young girls from India for sex and slave labor, filed into Wilken’s courtroom. Vijay and Prasad Lakireddy stood accused of helping their father smuggle the girls into the country.
George Cotsirilos, Vijay Lakireddy’s hotshot attorney, asked Wilken to throw out one of the charges against his client: “importing minor aliens for immoral purposes.” He argued that sexual relations with a woman under eighteen was certainly illegal in California, but strictly speaking, could the court really hold that it was immoral? After all, the girl in question was seventeen. The legal age of consent in most states is sixteen. Would the court feel comfortable issuing a ruling that declared, in effect, that the laws of half the states in the union were immoral?
Wilken spoke very little during the presentation, asking only a few questions to clarify his points. She kept her eyes fixed on the attorney, and she deliberated. It was impossible to read her feelings about Cotsirilos’ clients — their probable guilt or innocence, the enormity of their father’s crimes, the sophistry of their attorney’s arguments. But one thing was crystal clear: the judge’s being was at that moment entirely immersed in the merits of the case before her. It is difficult to reconcile Wilken moments like this with the charges of judicial activism that have been leveled against her. For here, first and foremost in her small courtroom, beyond the pomp of the counsel, the jeers of the activists, and far from the vitriolic sniping of the editorial writers, was the law. And here, the law reigned supreme.