Harry Pregerson

Harry Pregerson (October 13, 1923 – November 25, 2017) was a United States circuit judge appointed to the United States Court of Appeals for the Ninth Circuit by President Jimmy Carter in 1979.

Pregerson was regarded as one of the judiciary's most liberal judges, attracting both praise and criticism for his insistence on placing his conscience above court precedent.

Pregerson was born and raised in Los Angeles, California, where his father was a postal worker.

Both his parents were Jewish immigrants from Ukraine.

Pregerson was a United States Marine Corps First Lieutenant in World War II, during which he was severely wounded in the Battle of Okinawa (4 May 1945).

After the war, Pregerson attended college on the G.I. Bill.

He graduated from University of California, Los Angeles with a Bachelor of Arts degree in 1947, and the UC Berkeley School of Law with a Bachelor of Laws in 1950.

He was in private practice of law in Los Angeles from 1951 to 1953.

He was in private practice of law in Van Nuys, California from 1953 to 1965.

Pregerson joined the Los Angeles Municipal Court in 1965 and advanced to the Los Angeles County Superior Court the next year, serving until 1967.

Pregerson was nominated by President Lyndon B. Johnson on November 29, 1967, to the United States District Court for the Central District of California, to a new seat created by 80 Stat.

75. He was confirmed by the United States Senate on December 7, 1967, and received his commission the same day.

His service was terminated on November 6, 1979, due to elevation to the Ninth Circuit.

Pregerson was nominated by President Jimmy Carter on August 28, 1979, to the United States Court of Appeals for the Ninth Circuit, to a new seat created by 92 Stat.

1629. He was confirmed by the Senate on October 31, 1979, and received his commission on November 2, 1979.

In 1992, Pregerson halted the execution of Robert Alton Harris after the prisoner had been strapped into the gas chamber.

The U.S. Supreme Court allowed the execution to proceed two hours later.

In the case United States v. Reynard, the circuit court upheld the DNA Analysis Backlog Elimination Act of 2000.

Pregerson wrote a dissent, arguing that the act was an unconstitutional exercise of federal power.

Pregerson wrote a dissenting opinion in Jespersen v. Harrah's Operating Co., which was joined by judges Alex Kozinski, Susan P. Graber, and William A. Fletcher.

The majority ruled that Jespersen had not shown sufficient evidence that Harrah's "Personal Best" policy, which required women but not men to wear makeup, was sex discrimination.

Pregerson disagreed:

"Harrah's regarded women as unable to achieve a neat, attractive, and professional appearance without the facial uniform designed by a consultant and required by Harrah's. The inescapable message is that women's undoctored faces compare unfavorably to men's, not because of a physical difference between men's and women's faces, but because of a cultural assumption—and gender-based stereotype—that women's faces are incomplete, unattractive, or unprofessional without full makeup."

"Therefore, I strongly disagree with the majority's conclusion that there "is no evidence in this record to indicate that the policy was adopted to make women bartenders conform to a commonly-accepted stereotypical image of what women should wear.""

In 2003, Pregerson refused to follow Supreme Court precedent regarding California's three-strikes law.

Pregerson continued dissenting whenever the court imposed that law.

Pregerson was part of a unanimous three-judge panel that ordered the postponement of the 2003 California recall election based on the equal protection clause of the Fourteenth Amendment because in the recall, six counties would use the antiquated punched cards voting system.

The decision, however, was subsequently overturned by the en banc court of Ninth Circuit.

Eventually, the recall was successful in removing Gray Davis from governorship, and Arnold Schwarzenegger became the new governor of California.

Pregerson was a supporter of federalism and favors restraints on the power of federal government.

He wrote the majority decision in the Ninth Circuit panel on Gonzales v. Raich, holding that the Interstate Commerce Clause forbade the federal government from interfering with state laws that permitted the use of medical marijuana.

The ruling was later overturned by the Supreme Court, however, which held that it is within Congressional power to regulate intrastate activities that are seen to influence interstate commerce, including using homegrown marijuana for medical purposes.

Pregerson's first ruling on Raich was based on federalism rather than his opinion on the merit of medical marijuana.

In 2007, after Raich was decided by the Supreme Court, Angel Raich sued Alberto Gonzales again for substantive due process violation because the Controlled Substance Law deprived her fundamental right to life.

Pregerson ruled against Raich this time, arguing it is still untimely to call using medical marijuana a "fundamental right" that is "implicit in the concept of ordered liberty" as only a minority of states legalized medical marijuana.

He assumed senior status on December 11, 2015.

His service terminated on November 25, 2017, due to his death in Los Angeles.

Pregerson's judicial philosophy was frequently characterized as liberal.

At his confirmation hearing, Pregerson told the United States Senate Committee on the Judiciary that "My conscience is a product of the Ten Commandments, the Bill of Rights, the Boy Scout Oath, and the Marine Corps Hymn. If I had to follow my conscience or the law, I would follow my conscience."

The conservative commentator Hugh Hewitt criticized him for "judicial activism" and "rul[ing] with his heart instead of his head."