As part of Appellate Strategist’s ongoing evaluation of the “short list” of potential nominees to replace retiring Justice Stevens, we turn now to one of the nominees who was also on the short list to replace Justice Souter – Judge Kim McLane Wardlaw of the 9th Circuit Court of Appeals.

Judge Wardlaw is a California native, born in 1954 in San Francisco. She earned her undergraduate and law degrees at UCLA, graduating from law school in 1979. She clerked for the Hon. William P. Gray, U.S. District Court, Central District of California for two years, then worked in private practice as a litigator in Los Angeles from 1980-1995. Wardlaw worked on the Clinton-Gore Presidential Transition Team with the U.S. Department of Justice in 1992-1993, and later on the Mayoral Transition Committee for Los Angeles Mayor-elect Richard Riordan in 1993.

Wardlaw was nominated to the U.S. District Court, Central District of California, by President Clinton in 1995, and to the U.S. Court of Appeals for the Ninth Circuit in 1998. Both her confirmations were quick and unanimous. Such a history of bipartisan support might bode well for a future nomination.

Judge Wardlaw is often described as a moderate liberal or centrist, who would give the court greater diversity as the third female justice and the second Latina. She would also be the only non-Ivy League justice and offer extensive experience as a private litigator.

Join us below the jump for a review of notable Ninth Circuit opinions authored by Judge Wardlaw:


  • Bryan v. McPherson, 590 F.3d 767 (9th Cir. 2009): Holding that tasers are an intermediate, significant level of force that must be justified by a strong government interest compelling the use of such force, affirmed the denial of defendant police officer’s motion for summary judgment.
  • Stormans, Inc. v. Selecky, 586 F.3d 1109 (9th Cir. 2009): Reversed a preliminary injunction enjoining enforcement of state regulations that required pharmacies to deliver lawfully prescribed FDA-approved medications.
  • Redding v. Safford Unified School Dist. No.1, 531 F.3d 1071 (9th Cir. 2008) (en banc), aff’d in part, 129 S.Ct. 2633 (2009): Holding that school officials violated the Fourth Amendment by strip-searching a thirteen-year-old female student for prescription-strength ibuprofen.
  • Quon v. Arch Wireless Operating Co., Inc., 529 F.3d 892 (9th Cir. 2008), cert. granted, 130 S. Ct. 1011 (2009): Holding that employees have a reasonable expectation of privacy in the content of electronic messages they send using employer-provided equipment and service.
  • Card v. City of Everett, 520 F.3d 1009 (9th Cir. 2008): A monument displaying the Ten Commandments on city land did not constitute an establishment of religion in violation of First Amendment.
  • United States v. Quoc Viet Hoang, 486 F.3d 1156, (9th Cir. 2007), cert. denied, 128 S. Ct. 1064 (2008): A brief detention and search of a package, which created a temporary diversion but did not affect the package’s regularly scheduled delivery, did not violate the Fourth Amendment.
  • Jones v. City of Los Angeles, 444 F.3d 1118 (9th Cir. 2006): Holding that it is cruel and unusual punishment for police to arrest homeless people at night when they have nowhere else to go. (This decision was later vacated following settlement.)
  • Brown v. California Department of Transportation, 321 F.3d 1217 (9th Cir. 2003): A policy of permitting display of United States flags, but no other expressive banners, on highway overpasses was not reasonably consistent with the department’s goal of reducing motorist distractions and was viewpoint discriminatory as applied to prohibiting antiwar messages, and thus likely violates the First Amendment’s free speech clause.


  • Nelson v. NASA, 530 F.3d 865 (9th Cir. 2008), cert. granted, 2010 WL 757694 (2010): Contract employees in low-risk, non-sensitive positions were likely to prevail on the merits of their claim that in-depth background checks into sensitive medical histories and treatments violated their right to informational privacy.
  • Hulteen v. AT & T Corp., 498 F.3d 1001 (9th Cir. 2007) (en banc), rev’d, 129 S.Ct. 1962 (2009): Holding that an employer violated the Pregnancy Discrimination Act when it included time spent on disability leave, but excluded time spent on pregnancy leave, when calculating employees’ pension and retirement benefits.
  • Rui One Corp. v. City of Berkeley, 371 F.3d 1137 (9th Cir. 2004), cert denied, 543 U.S. 1081 (2005): Upheld the City of Berkeley’s authority to require that a living wage be paid to employees of certain companies receiving financial benefits from the city.
  • Roe v. City of San Diego, 356 F. 3d 1108 (9th Cir. 2004), rev’d, 543 U.S. 77 (2004): A dissenting opinion which predicted the subsequent Supreme Court decision that a police officer selling videos depicting himself engaged in sexually explicit conduct is not a constitutionally protected activity of public concern and was proper grounds for termination.
  • National Labor Relations Board v. Calkins, 187 F.3d 1080 (9th Cir. 1999), cert. denied, 529 U.S. 1098 (2000): California’s constitutional guarantee of freedom of speech does not allow store owners to prevent union members from peacefully picketing on the store’s private property, and, therefore, owners who attempt to exclude union organizers from their property commit an unfair labor practice in violation of Section 8(a)(1) of the National Labor Relations Act.


  • Barrientos v. 1801-1825 Morton LLC, 583 F.3d. 1197 (9th Cir. 2009): HUD regulations allowing eviction for good cause did not preempt the Los Angeles Rent Stabilization Ordinance.
  • Sprint v. Palos Verdes Estates, 583 F.3d 716 (9th Cir. 2009): The Telecommunications Act did not prohibit the city from considering aesthetic impacts when deciding whether to grant a permit to construct a wireless telecommunications facility in the city’s right-of-way.


  • Sacks v. Office of Foreign Assets Control, 466 F.3d 764 (9th Cir. 2006), cert. denied, 549 U.S. 1338 (2007): Upheld the pre-2003 United States sanctions prohibiting travel to Iraq and held that plaintiff lacked standing to challenge the prohibition of an unlicensed donation of medical supplies.
  • Altmann v. Republic of Austria, et al., 327 F.3d 1246 (9th Cir. 2003), affirmed, 541 U.S. 677 (2004): Holding that the Austrian government was subject to jurisdiction under the expropriation exception of the Foreign Sovereign Immunities Act in plaintiff’s lawsuit to recover paintings stolen from her family by the Nazis.
  • Coalition of Clergy, Lawyers, and Professors v. Bush, 310 F.3d 1153 (9th Cir. 2002), cert. denied, 538 U.S. 1031: Finding that the Coalition lacked standing to bring a habeas petition on behalf of the detainees at Guantanamo Bay, so that the district court lacked jurisdiction to decide whether a federal court could even address such claims.
  • Insurance Company of North America v. Federal Express Corp., 189 F.3d 914 (9th Cir. 1999): Holding that an employee’s theft of cargo from an air carrier’s holding facility during the course of international transportation cannot, under California law, be imputed to the carrier as “willful misconduct” for the purpose of avoiding liability limitations under Article 25 of the Warsaw Convention.


  • U.S. v. Chapman, 528 F.3d 1215 (9th Cir. 2008): Reversing a conviction for forcibly resisting a federal officer, holding that such conduct must at least amount to a simple assault and cannot simply be “tensing up” in response to officers’ blows.
  • Hovey v. Ayers, 458 F.3d 892 (9th Cir. 2006), cert. denied, 488 U.S. 871: Reversing a defendant’s capital sentence due to ineffective assistance of counsel during the sentencing phase where counsel failed to investigate and notify the testifying psychiatrist of critical mitigating facts regarding defendant’s mental health history.
  • Allen v. Woodford, 395 F.3d 979 (9th Cir. 2005), cert. denied, 484 U.S. 872: Ineffective assistance of counsel did not prejudice the defendant sentenced to death in light of overwhelming evidence of guilt such that a jury would still have sentenced him to death.
  • Ramirez v. Castro, 365 F.3d 755 (9th Cir. 2004): Reversing the defendant’s 25-years-to-life sentence under California’s “Three Strikes” law for a third shoplifting offense, finding it was grossly disproportionate to the crime committed and thus violated the Eighth Amendment.


  • Nagrampa v. MailCoups Inc., 469 F.3d 1257 (9th Cir. 2006) (en banc): It was the responsibility of the court, not an arbitrator, to decide whether an arbitration provision in a franchise agreement was unconscionable and also that a requirement that a California resident travel to Boston for arbitration is unconscionable and unenforceable under California law.


  • U.S. v. AMC Entertainment, 549 F.3d 760 (9th Cir. 2008): Reversing a district court  injunction which required nationwide retrofitting of movie theaters, because the theater owner had a due process right to notice of ADA requirements, which it did not have before some theaters were constructed, and the injunction also conflicted with an existing Fifth Circuit decision.
  • Fortyune v. American Multi-Cinema, Inc., 364 F. 3d 1075 (9th Cir. 2004): Movie theaters have a responsibility under the Americans with Disabilities Act to make reasonable accommodations to ensure that wheelchair-bound patrons can sit with their companions.


  •  Fernandez-Ruiz v. Gonzalez, 466 F.3d 1121 (9th Cir. 2006) (en banc): A dissenting opinion arguing that a defendant’s conviction for domestic violence should subject him to possible deportation under 8 U.S.C. 1227(a)(2)(E)(i), which makes a conviction for a “crime of violence” a deportable offense.
  • Ding v. Ashcroft, 387 F.3d 1131 (9th Cir. 2004): A petitioner who was forced to have an abortion pursuant to a country’s coercive family planning policy cannot be denied asylum under 8 U.S.C. § 1101(a)(42)(B) because she was not physically restrained during her abortion procedure.


  • State of Alaska v. Environmental Protection Agency, 298 F.3d 814 (9th Cir. 2002), affirmed, 540 U.S. 461 (2004): The EPA acted within its authority when determining that the Alaska Dept. of Environmental Conservation did not comply with the Clean Air Act when it issued a permit to a mining facility near a national preserve.


  • Washington Legal Foundation v. Legal Foundation of Washington, 271 F.3d 835 (9th Cir. 2001) (en banc), affirmed sub nom. Brown v. Legal Foundation of Washington, 538 U.S. 216 (2003): A Washington state program that applies interest earned on mandatory client trust accounts to various charitable purposes is not a compensable taking of client property within the meaning of Fifth Amendment.
  • Powers v. Eichen, 229 F.3d 1249 (9th Cir. 2000): An unnamed class member who files an objection in district court to the amount of attorney fees requested in a class action settlement under Federal Rule of Civil Procedure 23 has standing to appeal the fee award without intervening in district court.