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The Standard (of Review) in Judge Noonan's Judging

It is the business of the human soul to impose her own order upon the clamorous rout; to establish a hierarchy appropriate to the demands of her own nature, and by the mere fiat of her absolute choice, if that be based upon self-knowledge.—Judge Learned Hand “Where is the standard of review in Judge Noonan's opinion?” The question has been posed—I am confident—more than once. I first heard it when I clerked for Judge Noonan, from a friend clerking elsewhere on the Ninth Circuit. My friend wanted to know by what standard of review Judge Noonan had reached his result. “It's not there,” I replied, “and come to think of it, it never is.” “Well,” retorted my friend, “how can that be? In our chambers, the standard of review decides the case.” That little exchange (which is not apocryphal) rendered me speechless and thus got me thinking about the fetters that bind judges. While I disdained such a facile incantation—indeed, caricature—of the judicial “can't,” I accepted that while appellate courts rarely stand on the shoulders of giants, they do not sit as though the trial court (or agency) never rendered a decision. If appellate courts are not to be second trial courts, there must be some deference to the earlier proceeding, and that might usefully be designated the standard of review.