Harry Pregerson

Harry Pregerson was a United States circuit judge who served on the United States Court of Appeals for the Ninth Circuit from 1979 until his death in 2017. Born in Los Angeles in 1923, he was appointed to the federal appellate bench by President Jimmy Carter, a Democrat, following more than a decade of service as a federal district judge. A decorated Marine Corps veteran of World War II who was severely wounded at Okinawa, Pregerson brought to the bench a distinctive judicial philosophy informed by both his wartime service and his commitment to constitutional principles. Over his nearly four decades on the Ninth Circuit, he participated in numerous significant cases involving criminal justice, federalism, civil rights, and constitutional law, often articulating positions that emphasized individual rights and limitations on governmental power.

Early life and legal career

Pregerson was born on October 13, 1923, and raised in Los Angeles, California. His parents were Jewish immigrants who had come to the United States from Ukraine, and his father worked as a postal worker. During World War II, Pregerson served as a First Lieutenant in the United States Marine Corps, where he saw combat in the Pacific theater. On May 4, 1945, during the Battle of Okinawa, one of the war's bloodiest engagements, he sustained severe wounds. His military service and the injuries he suffered would remain formative experiences throughout his life and judicial career.

Following the war, Pregerson took advantage of the G.I. Bill to pursue higher education. He enrolled at the University of California, Los Angeles, where he earned a Bachelor of Arts degree in 1947. He then attended the University of California, Berkeley School of Law, receiving his Bachelor of Laws degree in 1950. After completing his legal education, Pregerson entered private practice in Los Angeles in 1951, where he worked for two years before relocating his practice to Van Nuys, California, in 1953. He continued in private practice in Van Nuys for twelve years, until 1965.

In 1965, Pregerson transitioned from private practice to the judiciary when he joined the Los Angeles Municipal Court. His tenure there was brief; the following year, in 1966, he advanced to the Los Angeles County Superior Court, where he served until 1967. This state judicial experience provided him with a foundation in trial court proceedings and local legal issues that would inform his later work on the federal bench.

Federal appellate service

Pregerson's federal judicial career began when President Lyndon B. Johnson nominated him to serve on the United States District Court for the Central District of California. Johnson submitted the nomination on November 29, 1967, for a newly created seat authorized by statute. The Senate confirmed Pregerson on December 7, 1967, and he received his commission the same day, beginning what would be nearly twelve years of service as a federal trial judge. During this period, he presided over numerous cases and developed a reputation for his approach to criminal justice and civil rights matters.

On August 28, 1979, President Jimmy Carter nominated Pregerson for elevation to the United States Court of Appeals for the Ninth Circuit, again to fill a newly created seat established by federal legislation. The Senate confirmed the nomination on October 31, 1979, and Pregerson received his commission on November 2, 1979. His service on the district court was terminated on November 6, 1979, upon his elevation to the appellate court. Pregerson would serve as an active circuit judge for more than three decades, until he assumed senior status on December 11, 2015. He continued to serve in senior status until his death in Los Angeles on November 25, 2017, at the age of 94.

Jurisprudence and legacy

Pregerson articulated a distinctive judicial philosophy during his confirmation proceedings before the Senate Judiciary Committee. He stated that his conscience was shaped by the Ten Commandments, the Bill of Rights, the Boy Scout Oath, and the Marine Corps Hymn, and indicated that if faced with a conflict between his conscience and the law, he would follow his conscience. This statement drew both support and criticism throughout his career, with some conservative commentators characterizing his approach as judicial activism and suggesting he ruled with emotion rather than strict legal reasoning.

In the area of criminal punishment, Pregerson demonstrated particular concern for procedural protections and the application of capital punishment. In 1992, he issued an order halting the execution of Robert Alton Harris after the condemned prisoner had already been strapped into the gas chamber. The United States Supreme Court vacated his order approximately two hours later, allowing the execution to proceed. Pregerson also took a critical stance toward California's three-strikes sentencing law; in 2003, he declined to follow Supreme Court precedent regarding the law and continued to dissent in cases where the appellate court applied the mandatory sentencing provisions.

Pregerson's approach to federalism reflected a concern for limiting federal governmental power and respecting state sovereignty. He authored the majority opinion for a Ninth Circuit panel in Gonzales v. Raich, concluding that the Interstate Commerce Clause prohibited federal interference with state laws permitting medical marijuana use. The Supreme Court subsequently reversed this decision, holding that Congress possessed authority under the Commerce Clause to regulate intrastate activities, including the cultivation and use of marijuana for medical purposes, when such activities could be viewed as affecting interstate commerce. Pregerson's analysis in the case was grounded in federalism principles rather than views on the merits of medical marijuana policy. When the same plaintiff later brought a substantive due process claim, Pregerson ruled against her, reasoning that the use of medical marijuana could not yet be considered a fundamental right implicit in the concept of ordered liberty, given that only a minority of states had legalized such use at that time. In another federalism case, United States v. Reynard, Pregerson dissented from the circuit court's decision upholding the DNA Analysis Backlog Elimination Act of 2000, arguing that the statute represented an unconstitutional exercise of federal authority.

In the realm of civil rights and gender equality, Pregerson authored a dissenting opinion in Jespersen v. Harrah's Operating Co., joined by several other circuit judges. The majority had ruled that a plaintiff failed to demonstrate that an employer's grooming policy requiring female but not male employees to wear makeup constituted unlawful sex discrimination. Pregerson's dissent argued that the policy reflected a gender-based stereotype that women's faces were incomplete or unprofessional without makeup, representing an assumption that women could not achieve a professional appearance without cosmetic enhancement while men could. He contended that this differential treatment was based on cultural assumptions rather than any physical difference between men and women.

Pregerson also participated in a significant election law matter when he joined a unanimous three-judge panel that ordered postponement of the 2003 California gubernatorial recall election. The panel's decision rested on Equal Protection Clause grounds, based on the fact that six counties would use outdated punch-card voting systems in the recall election. The decision was subsequently overturned by the full Ninth Circuit sitting en banc, and the recall election proceeded, ultimately resulting in the removal of Governor Gray Davis and the election of Arnold Schwarzenegger as his successor.

Throughout his lengthy tenure on the federal bench, Pregerson remained a distinctive voice on the Ninth Circuit, bringing to his judicial work the perspectives formed by his immigrant family background, his combat service and wounds in World War II, and his years in private practice and on the state courts. His approach to judging, emphasizing conscience alongside legal precedent, generated ongoing debate about the proper role of personal values in judicial decision-making.