Appellate Strategist’s continuing series of profiles of “short list” candidates to replace the retiring Justice John Paul Stevens continues with Judge Sidney Thomas of the 9th Circuit Court of Appeals.  Judge Thomas is notable for his relatively conventional professional path, and his geographic and educational roots.  Where many of the current Justices arrived at the Court from the East Coast, Judge Thomas hails from Billings, Montana.  Many Justices had backgrounds in public service before assuming the bench, but Judge Thomas toiled as a private litigator representing a diverse array of commercial interests before the Montana Supreme Court and the federal appellate courts.  And, if he joins the Court, he’d be the only non-Ivy Leaguer among the justices.

Judge Thomas was born in 1953 in Bozeman, Montana, and graduated from Montana State in 1975.  He went directly to law school at the University of Montana, graduating in 1978.  In private practice, he represented mineral rights interests in cases ranging from inverse condemnation to the validity of oil and gas leases, as well as employers in wrongful discharge cases, newspapers in defamation cases, and a national broadcast network in a constitutional challenge to a Montana statute.

While in private practice, Judge Thomas supported the campaign of Senator Max Baucus, D- Mont., who later recommended him for the 9th Circuit.  President Clinton nominated Judge Thomas, who was confirmed by the Senate without controversy in January, 1996.

Notable Opinions:

First Amendment

• Jacobs v. Clark County School Dist., 536 F.3d 419 (9th Cir. 2008) (holding that a school district’s content-neutral uniform policy placed only incidental restrictions on students’ expressive rights, and was reasonably drawn to further student achievement, safety, and a positive environment, and hence did not violate the First Amendment)

• Hufford v. McEnaney, 249 F.3d 1142 (9th Cir. 2001) (holding that employers were not entitled to qualified immunity for retaliatory discharge because they should have known that plaintiff’s whistleblower activity was protected by First Amendment);

• Phoenix Newspapers v. United States District Court, 156 F.3d 940 (9th Cir. 1998) (holding that court could not seal transcripts without specific findings of likelihood of harm to defendants’ right to fair trial as a result of publicizing transcripts’ content).

Habeas Corpus

• Nadarajah v. Gonzales, 443 F.3d 1069 (9th Cir. 2006) (petitioner seeking a writ of habeas corpus to end his five-year, and apparently indefinite, detention, had been granted asylum twice, and prevailed at every administrative stage of the asylum process.  Nevertheless he was detained as a terrorist suspect at the Attorney General’s discretion.  In an opinion authored by Judge Thomas, the 9th Circuit issued the writ, releasing petitioner, finding that the government had exceeded its statutory authority in holding him.  This opinion has been cited no less than 175 times, and distinguished by other courts a dozen times.)


• In re the Matter of Bruce Edward Howard Simpson, 557 F.3d 1010 (9th Cir. 2009) (single-premium annuity contract did not qualify as insurance under applicable California statutes).

Products Liability

• Nguyen v. Southwest Leasing & Rental, Inc., 282 F.3d 1061 (9th Cir. 2002) (in a personal injury action involving an allegedly defective car tire,  trial court’s admission of curative evidence to rebut erroneously admitted evidence as to the standard of care for tire manufacturers affirmed).

• Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998) (district court’s approval of a class settlement involving 1982 Chrysler minivans affirmed).

ERISA Preemption

• Carpenters Health & Welfare Trust v. Vonderharr, 384 F.3d 667 (9th Cir. 2004) (federal claims in connection with a benefit provider’s suit for reimbursement from the proceeds of an enrollee’s settlement of a personal injury suit preempted, but certain state common law claims were not).