United States Court of Appeals for the Ninth Circuit


United States Court of Appeals for the Ninth Circuit
Seal of the United States Court of Appeals for the Ninth Circuit

The United States Court of Appeals for the Ninth Circuit (in case citations, 9th Cir.) is a U.S. federal court with appellate jurisdiction over the district courts in the following districts:

It also has appellate jurisdiction over the following territorial courts:

Headquartered in San Francisco, California, the Ninth Circuit is by far the largest of the thirteen courts of appeals, with 29 active judgeships. The court's regular meeting places are Seattle at the William K. Nakamura Courthouse, Portland at the Pioneer Courthouse, San Francisco at the James R. Browning U.S. Court of Appeals Building, and Pasadena at the Richard H. Chambers U.S. Court of Appeals, but panels of the court occasionally travel to hear cases in other locations within its territorial jurisdiction. Although the judges travel around the circuit, the court arranges its hearings so that cases from the northern region of the circuit are heard in Seattle or Portland, cases from southern California are heard in Pasadena, and cases from northern California, Nevada, Arizona, and Hawaii are heard in San Francisco. For lawyers who must come and present their cases to the court in person, this administrative grouping of cases helps to reduce the time and cost of travel.

Contents

History and background

Ninth Circuit Court House in 1905
Year Jurisdiction Total population Pop. as % of nat'l pop. Number of active judgeships
1891 CA, ID, MT, NV, OR, WA 2,087,000 3.3% 2
1900 CA, HI, ID, MT, NV, OR, WA 2,798,000 3.7% 3
1920 AZ, CA, HI, ID, MT, NV, OR, WA 7,415,000 6.7% 3
1940 AZ, CA, HI, ID, MT, NV, OR, WA 11,881,000 9.0% 7
1960 AK, AZ, CA, GU, HI, ID, MT, NV, OR, WA 22,607,000 12.6% 9
1980 AK, AZ, CA, GU, HI, ID, MP, MT, NV, OR, WA 37,170,000 16.4% 23
2000 AK, AZ, CA, GU, HI, ID, MP, MT, NV, OR, WA 54,575,000 19.3% 28
2007 AK, AZ, CA, GU, HI, ID, MP, MT, NV, OR, WA 60,400,000 19.9% 28
2009 AK, AZ, CA, GU, HI, ID, MP, MT, NV, OR, WA 61,403,307 19.72% 29

The large size of the current court is due to the fact that both the population of the western states and the geographic jurisdiction of the Ninth Circuit have increased dramatically since Congress, in 1891, created the United States Court of Appeals for the Ninth Circuit. The court was originally granted appellate jurisdiction over federal district courts in California, Idaho, Montana, Nevada, Oregon, and Washington. As new states and territories were added to the federal judicial hierarchy in the twentieth century, many of those in the West were placed in the Ninth Circuit: the newly acquired territory of Hawaii in 1900, Arizona upon its accession to statehood in 1912, the then-territory of Alaska in 1948, Guam in 1951, and the Commonwealth of the Northern Mariana Islands (CNMI) in 1977. In 1979, the Ninth Circuit became the first federal judicial circuit to set up a Bankruptcy Appellate Panel.

The Richard H. Chambers U.S. Court of Appeals, Pasadena, California

The cultural and political jurisdiction of the Ninth Circuit is just as varied as the land within its geographical borders. In a dissenting opinion in a rights of publicity case involving Wheel of Fortune star Vanna White, Circuit Judge Alex Kozinski sardonically noted that “[f]or better or worse, we are the Court of Appeals for the Hollywood Circuit.”[1] Judges from more remote parts of the circuit note the contrast between legal issues confronted by populous states such as California and those confronted by rural states such as Alaska, Idaho, and Montana. Judge Andrew J. Kleinfeld, who maintains his chambers in Fairbanks, Alaska, wrote in a 1998 letter: “Much federal law is not national in scope…. It is easy to make a mistake construing these laws when unfamiliar with them, as we often are, or not interpreting them regularly, as we never do.”[2]

Many scholars and jurists, like Judge Kleinfeld, cite regional differences between states in the circuit, as well as the practical, procedural, and substantive difficulties in administering a court of this size, as reasons why Congress should split the Ninth Circuit into two or more smaller circuit courts. Opponents of such a move claim that the court is functioning smoothly from an administrative standpoint, and that the real problem is not that the circuit is too large, but that Congress has not created enough judgeships to handle the court's workload. Opponents also point out that over half of the Ninth Circuit's cases come from the state of California, and thus dividing the Circuit would result in whichever portion included California being dominated by cases from a single state. Moreover, many who advocate the preservation of the current Ninth Circuit see politics as a motivating factor in the split movement. They claim that by implementing a scheme that isolates California from the other states in the circuit, the effect of a split will be to dilute the power of judges who have handed down rulings that have angered social conservatives.[citation needed]

Controversy

Political liberalism

According to the most current count, the Ninth Circuit has the highest percentage of active judges appointed by Democratic presidents, with 59%. Until 2003, this percentage was much higher; a political stalemate over judicial nominations subsequently kept several vacancies on the court for several years. Nevertheless, such a percentage is not extreme in relation to the other Circuits. 82% of the active judges on the Eighth Circuit were appointed by Republicans and eight circuits have partisan appointment ratios that are more skewed than the Ninth's.

Critics try to explain the court's perceived liberal bias by reference to its relatively high proportion of Democratic appointees. Such critics often point to 2002's Newdow v. U.S. Congress, in which the court declared that a public school district in Elk Grove, California, could not lead students in recitation of the Pledge of Allegiance (as then constituted); the pledge's inclusion of the words "under God," the court held, violated the Establishment Clause. The case was brought by Michael Newdow, an atheist who felt that the daily recitation of the Pledge in his daughter's school violated her First Amendment right to be free from government establishment of religion. In a 2–1 decision, a Ninth Circuit panel held for Newdow, stating that “[t]he text of the official Pledge, codified in federal law, impermissibly takes a position with respect to the purely religious question of the existence and identity of God.” The majority opinion was written by Alfred T. Goodwin, who was appointed to the court by Richard Nixon, a Republican.

In 2004, the United States Supreme Court reversed the Ninth Circuit's decision. However, the majority opinion did not reach the substantive issue of whether the Pledge violated the Establishment Clause, instead holding that Newdow, who did not have primary custody of his daughter (the child's mother, whom Newdow never married, had custody), did not have standing to litigate the claim in federal court. Chief Justice William Rehnquist and Justices Sandra Day O'Connor and Clarence Thomas disagreed with the majority's opinion of Newdow's standing, but concurred in the judgment, making this a unanimous decision reversing the Ninth Circuit. Thomas wrote that the Ninth Circuit's opinion was “a persuasive reading of (Supreme Court) precedent,” but then attacked the precedent, particularly Lee v. Weisman. Rehnquist and O'Connor disagreed with the Ninth Circuit's interpretation of the precedent.

Indeed, while the Ninth Circuit had long been instrumental in striking new legal ground, particularly in the areas of immigration law and prisoner rights, it was the Newdow decision that galvanized criticism against what conservatives saw as “judicial activism.” Reaction to the decision by prominent political leaders, especially those in the House and Senate, was passionate. President George W. Bush, through his spokesman Ari Fleischer, called the ruling “ridiculous,” while Senator Charles Grassley called it “crazy and outrageous.” Even mainstream Democrats attacked the decision, with House minority leader Richard Gephardt calling it “poorly thought out.” Criticisms of the Newdow decision were not limited to the substantive law considered by the judges who heard the case; they also attacked the legitimacy and political independence of the court itself. The result was a renewed focus on the Ninth Circuit's caseload and a targeted effort by congressional Republicans to minimize the impact of such decisions.

Another hotly contested case considered by the Ninth Circuit arose from the enactment of a California law permitting the cultivation and use of marijuana for medicinal purposes. In Raich v. Ashcroft, 352 F.3d 1222 (9th Cir. 2003), rev'd sub nom. Gonzales v. Raich, 545 U.S. 1 (2005), a cancer patient sued the federal government, seeking to prevent it from seizing her supply of medical marijuana under the federal Controlled Substances Act. The United States argued that it had the right to enforce its drug laws against Raich notwithstanding the California statute. Raich argued that since the marijuana was grown within California, had never left the state's borders, and was not part of any economic transaction, Congress had no constitutional authority to regulate her cultivation and use of marijuana. In holding for Raich, the Ninth Circuit adhered to two landmark Supreme Court cases, United States v. Lopez, 514 U.S. 549 (1995), and United States v. Morrison, 529 U.S. 598 (2000), which had substantially restricted Congress's authority to regulate “noneconomic” activity under the guise of the Commerce Clause to the United States Constitution. In a 6–3 decision, the Supreme Court disagreed with this analysis, adhering instead to a 1942 case, Wickard v. Filburn, 317 U.S. 111 (1942), in which the Court held that cultivation of wheat for personal consumption could be subject to a federal production quota even though the crop never entered the stream of commerce. Interestingly, the three dissenters—voting to uphold the Ninth Circuit—were Chief Justice William H. Rehnquist and Justice Clarence Thomas, considered to be two of the most conservative members of the Court, as well as Justice Sandra Day O'Connor, considered to be the swing vote on the Court at the time. The Raich litigation illustrates that although the result of the Ninth Circuit's decision pleased political liberals opposed to tough federal drug laws, the legal analysis employed by the court was faithful to the principles of federalism and thus wholly “conservative” from a legal perspective.

On the other hand, not every Supreme Court reversal of a Ninth Circuit decision has come in a case where the appellate judges ruled in favor of a group championed by political liberals. In Kyllo v. United States, 533 U.S. 27 (2001), the Supreme Court reversed a decision of the Ninth Circuit in favor of the government. The Ninth Circuit had ruled that evidence of a marijuana-growing operation obtained without a warrant by means of a thermal imaging device could be introduced at a criminal trial because the Fourth Amendment did not recognize an expectation of privacy in radiation emanating from a private home. The Supreme Court reversed because a person's home is a place where he has always had an expectation of privacy, such that the search at issue required a warrant.[3]

Former Chief Judges Mary M. Schroeder and Procter Ralph Hug, Jr.

Size of the court

In addition to concerns over its legal doctrine, critics of the Ninth Circuit claim there are several adverse consequences of its large size.[4] Chief among these is the Ninth Circuit's unique rules concerning the composition of an en banc court. In other circuits, en banc courts are composed of all active circuit judges, plus (depending on the rules of the particular court) any senior judges who took part in the original panel decision. By contrast, in the Ninth Circuit it is impractical for twenty-eight or more judges to take part in a single oral argument and deliberate on a decision en masse. The court thus provides for a “limited en banc” review of a randomly-selected 11 judge panel. This means that en banc reviews may not actually reflect the views of the majority of the court, and indeed may not include any of the three judges involved in the decision being reviewed in the first place. The result, according to detractors, is a high risk of intracircuit conflicts of law where different groupings of judges end up delivering contradictory opinions. This is said to cause uncertainty in the district courts and within the bar. However, en banc review is a relatively rare occurrence in all circuits and Ninth Circuit rules do provide for full en banc review in limited circumstances.[5] All currently proposed splits would leave at least one circuit with 21 judges, only two fewer than the 23 that the Ninth Circuit had when the limited en banc procedure was first adopted; in other words, after a split at least one of the circuits would still be utilizing limited en banc courts.[6]

In March 2007, Justices Anthony Kennedy and Clarence Thomas testified before a House Appropriations subcommittee that the consensus among the justices of the Supreme Court of the United States was that the Ninth Circuit was too large and unwieldy and should be split.[7]

Ninth Circuit split proposals

The following are the most prominent of the several existing or former proposals that have been considered by congressional leaders, legislative commissions, and interest groups.

Ninth Circuit Court of Appeals Reorganization Act of 1993, H.R. 3654
This proposal from Rep Michael Kopetski (D-OR) would have created a unique state-splitting circuit. Under his proposal, the new Twelfth Circuit would consist of the states of Arizona, Nevada, and the southern half of California (Central and Southern Districts), headquartered in Pasadena, California. The Ninth Circuit would have retained the remainder (Northern and Eastern Districts) of California, and the remaining current Ninth Circuit jurisdictions of Alaska, Washington, Oregon, Idaho, Montana, Hawaii, and the Territorial courts of Guam and the Northern Mariana Islands. This proposal was largely based on the earlier Hruska Commission Report, which recommended essentially the same split. The central advantage of the plan is that it would have evenly divided the caseload of the current Ninth Circuit in half, and evenly split the then-authorized 28 judgeships in half as well. The central disadvantages were that California would be subject to two possibly contradictory Circuits (no state has ever been split between two Circuits), and conversely, California would still make up the majority of the caseload and judgeships in both newly created districts, thus eliminating a prime incentive of Ninth Circuit split advocates; namely, to remove their state from the influence of California.[8]
Commission on Structural Alternatives for the Federal Courts of Appeals, Final Report, Dec. 18, 1998
The Commission found that splitting the Ninth Circuit would be “impractical and … unnecessary.” However, it recommended that the circuit be divided into three “adjudicative divisions” each of which would hear appeals from specific regions. A fourth at-large “circuit division” would be invoked solely to resolve conflicts of law arising within a particular division. This proposal would also abolish circuit-wide en banc or limited en banc circuit panels, instead creating en banc panels from each of the three regions as necessary.
Ninth Circuit Court of Appeals of Reorganization Act of 2003, S. 562
This proposal would split the Ninth Circuit into two, with California and Nevada being retained by the new Ninth Circuit and the remaining Ninth Circuit jurisdictions being assigned to a new Twelfth Circuit. The bill would create ten new judgeships, with 25 being retained by the Ninth Circuit and 13 being assigned to the Twelfth Circuit. Each current Ninth Circuit judge would be assigned to a new circuit based on the location of his or her duty station. This proposal was co-sponsored by seven Republican Senators from Alaska, Montana, Idaho, Oklahoma, and Oregon. After a hearing by the Senate Judiciary Subcommittee on Administrative Oversight and the Courts on April 7, 2004, no vote was held.
Ninth Circuit Court of Appeals Judgeship and Reorganization Act of 2003, H.R. 2723
This proposal would split the Ninth Circuit into two, with Arizona, California and Nevada being retained by the new Ninth Circuit and the remaining Ninth Circuit jurisdictions being assigned to a new Twelfth Circuit. The bill would create five permanent and two temporary judgeships, all to be retained by the new Ninth Circuit. The temporary judgeships would terminate upon the existence of a vacancy ten years or more after passage of the act. Each current Ninth Circuit judge would be assigned to a new circuit based on the location of his or her duty station. This proposal was co-sponsored by Republican congressmen from Washington, Idaho, Oregon, and Washington. After a hearing by the House Judiciary Subcommittee on Courts, the Internet, and Intellectual Property on October 21, 2003, no vote was held. This bill was reintroduced in the 109th Congress as H.R. 212, the Ninth Circuit Court of Appeals Judgeship and Reorganization Act of 2005.
Ninth Circuit Judgeship and Reorganization Act of 2004, S. 878
This proposal would create two new circuits, the Twelfth and Thirteenth. The Ninth Circuit would retain California, Hawaii, Guam, and the CNMI. The Twelfth Circuit would contain Arizona, Nevada, Idaho, and Montana. The Thirteenth Circuit would contain Alaska, Oregon, and Washington. The Act would provide that existing judges be assigned to new circuits based on the location of their duty stations, after which the number of active judgeships in the new Ninth Circuit would be increased to nineteen. This bill was reintroduced in the 109th Congress as the Ninth Circuit Judgeship and Reorganization Act of 2005, H.R. 211, co-sponsored by House Majority Leader Tom DeLay and the same Republican Congressmen who had sponsored the Ninth Circuit Court of Appeals Judgeship and Reorganization Act of 2003.
The Circuit Court of Appeals Restructuring and Modernization Act of 2005, S. 1845[9]
This proposal would split the Ninth Circuit into two, with California, Hawaii, Guam, and the Northern Mariana Islands being retained by the Ninth Circuit, and the remaining Ninth Circuit jurisdictions being assigned to new Twelfth Circuit. It would create five permanent and two temporary judgeships, all retained by the new Ninth Circuit. The temporary judgeships would terminate upon the existence of a vacancy ten years or more after passage of the act. Each current Ninth Circuit judge would be assigned to a new circuit based on the location of his or her duty station. The proposal was co-sponsored by nine Republican senators from Alaska, Arizona, Montana, Nevada, Idaho, Oklahoma, and Oregon, including the same group of senators that had sponsored S. 562 in the previous Congress. It would seem to have superseded S. 1296, which is similar in the states assigned to each new circuit and the number of judgeships in each new circuit; every sponsor of S. 1296 also sponsored S. 1845.
Circuit Court of Appeals Restructuring and Modernization Act of 2007, S. 525[10]
This proposal would amend Title 28, United States Code, to provide for the appointment of additional Federal circuit judges and to divide the Ninth Judicial Circuit of the United States into 2 circuits. The proposed split would be the Ninth Circuit (to be composed of California, Guam, Hawaii, and the Northern Mariana Islands) and the Twelfth Circuit (to be composed of Alaska, Arizona, Idaho, Montana, Nevada, Oregon, and Washington). It was referred to the Senate Judiciary Committee on Feb. 8, 2007.

Current composition of the court

As of October 9, 2011 (2011 -10-09), the judges on the court are:

# Title Judge Duty station Born Term of service Appointed by
Active Chief Senior
62 Chief Judge Alex Kozinski Pasadena, CA 1950 1985–present 2007–present Reagan
46 Circuit Judge Mary M. Schroeder Phoenix, AZ 1940 1979–present 2000–2007 Carter
50 Circuit Judge Harry Pregerson Woodland Hills, CA 1923 1979–present Carter
57 Circuit Judge Stephen Reinhardt Los Angeles, CA 1931 1980–present Carter
65 Circuit Judge Diarmuid Fionntain O'Scannlain Portland, OR 1937 1986–present Reagan
74 Circuit Judge Sidney Runyan Thomas Billings, MT 1953 1996–present Clinton
75 Circuit Judge Barry G. Silverman Phoenix, AZ 1951 1998–present Clinton
76 Circuit Judge Susan P. Graber Portland, OR 1949 1998–present Clinton
77 Circuit Judge M. Margaret McKeown San Diego, CA 1951 1998–present Clinton
78 Circuit Judge Kim McLane Wardlaw Pasadena, CA 1954 1998–present Clinton
79 Circuit Judge William A. Fletcher San Francisco, CA 1945 1998–present Clinton
80 Circuit Judge Raymond C. Fisher Pasadena, CA 1939 1999–present Clinton
81 Circuit Judge Ronald M. Gould Seattle, WA 1946 1999–present Clinton
82 Circuit Judge Richard A. Paez Pasadena, CA 1947 2000–present Clinton
83 Circuit Judge Marsha S. Berzon San Francisco, CA 1945 2000–present Clinton
84 Circuit Judge Richard C. Tallman Seattle, WA 1953 2000–present Clinton
85 Circuit Judge Johnnie B. Rawlinson Las Vegas, NV 1952 2000–present Clinton
86 Circuit Judge Richard R. Clifton Honolulu, HI 1950 2002–present G.W. Bush
87 Circuit Judge Jay Bybee Las Vegas, NV 1953 2003–present G.W. Bush
88 Circuit Judge Consuelo Maria Callahan Sacramento, CA 1950 2003–present G.W. Bush
89 Circuit Judge Carlos T. Bea San Francisco, CA 1934 2003–present G.W. Bush
90 Circuit Judge Milan D. Smith, Jr. El Segundo, CA 1942 2006–present G.W. Bush
91 Circuit Judge Sandra Segal Ikuta Pasadena, CA 1954 2006–present G.W. Bush
92 Circuit Judge N. Randy Smith Pocatello, ID 1949 2007–present G.W. Bush
93 Circuit Judge Mary H. Murguia Phoenix, AZ 1960 2011–present Obama
Circuit Judge (vacant since 2004-12-31 - seat 5, formerly Trott) (n/a) (n/a) (n/a) (n/a) (n/a) (n/a)
Circuit Judge (vacant since 2009-01-21 - new seat 29 added by Pub. L. 110-177) (n/a) (n/a) (n/a) (n/a) (n/a) (n/a)
Circuit Judge (vacant since 2010-06-12 - seat 12, formerly Kleinfeld) (n/a) (n/a) (n/a) (n/a) (n/a) (n/a)
Circuit Judge (vacant since 2011-09-21 - seat 7, formerly Rymer) (n/a) (n/a) (n/a) (n/a) (n/a) (n/a)
29 Senior Circuit Judge James R. Browning San Francisco, CA 1918 1961–2000 1976–1988 2000–present Kennedy
38 Senior Circuit Judge Alfred Theodore Goodwin Pasadena, CA 1923 1971–1991 1988–1991 1991–present Nixon
39 Senior Circuit Judge J. Clifford Wallace San Diego, CA 1928 1972–1996 1991–1996 1996–present Nixon
43 Senior Circuit Judge Procter Ralph Hug, Jr. Reno, NV 1931 1977–2002 1996–2000 2002–present Carter
45 Senior Circuit Judge Betty Binns Fletcher Seattle, WA 1923 1979–1998 (none) 1998–present Carter
47 Senior Circuit Judge Otto Richard Skopil, Jr. Portland, OR 1919 1979–1986 (none) 1986–present Carter
48 Senior Circuit Judge Joseph Jerome Farris Seattle, WA 1930 1979–1995 (none) 1995–present Carter
49 Senior Circuit Judge Arthur Lawrence Alarcon Los Angeles, CA 1925 1979–1992 (none) 1992–present Carter
53 Senior Circuit Judge Dorothy Wright Nelson Pasadena, CA 1928 1979–1995 (none) 1995–present Carter
54 Senior Circuit Judge William Cameron Canby, Jr. Phoenix, AZ 1931 1980–1996 (none) 1996–present Carter
58 Senior Circuit Judge Robert R. Beezer Seattle, WA 1928 1984–1996 (none) 1996–present Reagan
63 Senior Circuit Judge John T. Noonan, Jr. San Francisco, CA 1926 1985–1996 (none) 1996–present Reagan
66 Senior Circuit Judge Edward Leavy Portland, OR 1929 1987–1997 (none) 1997–present Reagan
67 Senior Circuit Judge Stephen S. Trott Boise, ID 1939 1988–2004 (none) 2005–present Reagan
68 Senior Circuit Judge Ferdinand Francis Fernandez Pasadena, CA 1937 1989–2002 (none) 2002–present G.H.W. Bush
71 Senior Circuit Judge Andrew Jay Kleinfeld Fairbanks, AK 1945 1991–2010 (none) 2010—present G.H.W. Bush
72 Senior Circuit Judge Michael Daly Hawkins Phoenix, AZ 1945 1994–2010 (none) 2010–present Clinton
73 Senior Circuit Judge A. Wallace Tashima Pasadena, CA 1934 1996–2004 (none) 2004–present Clinton

Vacancies and pending nominations

Seat Seat last held by Vacancy reason Date of vacancy Nominee Nomination(s)
5 Stephen S. Trott Senior Status December 31, 2004 —— ——
7 Pamela Ann Rymer Death September 21, 2011 Paul J. Watford October 17, 2011
12 Andrew Jay Kleinfeld Senior Status June 12, 2010 Morgan Christen May 18, 2011
15 Mary M. Schroeder Senior Status January 1, 2012 (announced)[11] Andrew D. Hurwitz November 2, 2011
29 New Seat[12] Open January 21, 2009 Jacqueline H. Nguyen September 22, 2011

List of former judges

# Judge State Born/Died Active service Term as Chief Judge Senior status Appointed by Reason for
termination
1 Sawyer, LorenzoLorenzo Sawyer CA 1820–1891 1891–1891 (none) (none) [13] death
2 McKenna, JosephJoseph McKenna CA 1843–1926 1892–1897 (none) (none) Harrison, B.B. Harrison Appointed U.S. Attorney General
3 Gilbert, William BallWilliam Ball Gilbert OR 1847–1931 1892–1931 (none) (none) Harrison, B.B. Harrison death
4 Ross, Erskine MayoErskine Mayo Ross CA 1845–1928 1895–1925 (none) 1925–1928 Cleveland, Cleveland death
5 Morrow, William W.William W. Morrow CA 1843–1929 1897–1923 (none) (none) McKinley, McKinley resignation
Hunt, William HenryWilliam Henry Hunt MT 1857–1949 1911–1928 (none) 1928–1928 [14] resignation
6 Rudkin, Frank H.Frank H. Rudkin WA 1864–1931 1923–1931 (none) (none) Harding, Harding death
7 McCamant, WallaceWallace McCamant OR 1867–1944 1925[15]–1926 (none) (none) Coolidge, Coolidge recess appointment not confirmed by the United States Senate
8 Dietrich, Frank SigelFrank Sigel Dietrich ID 1863–1930 1927–1930 (none) (none) Coolidge, Coolidge death
9 Wilbur, Curtis D.Curtis D. Wilbur CA 1867–1954 1929–1945 (none) 1945–1954 Hoover, Hoover[16] death
10 Sawtelle, William HenryWilliam Henry Sawtelle AZ 1868–1934 1931–1934 (none) (none) Hoover, Hoover death
11 Garrecht, Francis ArthurFrancis Arthur Garrecht WA 1870–1948 1933–1948 (none) (none) Roosevelt, F.F. Roosevelt death
12 Denman, WilliamWilliam Denman CA 1872–1959 1935–1957 1948–1957 1957–1959 Roosevelt, F.F. Roosevelt death
13 Mathews, CliftonClifton Mathews AZ 1880–1962 1935–1953 (none) 1953–1962 Roosevelt, F.F. Roosevelt death
14 Haney, Bert EmoryBert Emory Haney OR 1879–1943 1935–1943 (none) (none) Roosevelt, F.F. Roosevelt death
15 Stephens, Sr., Albert LeeAlbert Lee Stephens, Sr. CA 1874–1965 1937–1961 1957–1959 1961–1965 Roosevelt, F.F. Roosevelt death
16 Healy, WilliamWilliam Healy ID 1881–1962 1937–1958 (none) 1958–1962 Roosevelt, F.F. Roosevelt death
17 Bone, HomerHomer Bone WA 1883–1970 1944–1956 (none) 1956–1970 Roosevelt, F.F. Roosevelt death
18 Orr, William EdwinWilliam Edwin Orr NV 1881–1965 1945–1956 (none) 1956–1965 Truman, Truman death
19 Pope, Walter LyndonWalter Lyndon Pope MT 1889–1969 1949–1961 1959–1959 1961–1969 Truman, Truman death
20 Lemmon, Dal MillingtonDal Millington Lemmon CA 1887–1958 1954–1958 (none) (none) Eisenhower, Eisenhower death
21 Chambers, Richard HarveyRichard Harvey Chambers AZ 1906–1994 1954–1976 1959–1976 1976–1994 Eisenhower, Eisenhower death
22 Fee, James AlgerJames Alger Fee OR 1888–1959 1954–1959 (none) (none) Eisenhower, Eisenhower death
23 Barnes, Stanley NelsonStanley Nelson Barnes CA 1900–1990 1956–1970 (none) 1970–1990 Eisenhower, Eisenhower death
24 Hamley, Frederick GeorgeFrederick George Hamley WA 1903–1975 1956–1971 (none) 1971–1975 Eisenhower, Eisenhower death
25 Hamlin, Jr., Oliver DevetaOliver Deveta Hamlin, Jr. CA 1892–1973 1958–1963 (none) 1963–1973 Eisenhower, Eisenhower death
26 Jertberg, Gilbert H.Gilbert H. Jertberg CA 1897–1973 1958–1967 (none) 1967–1973 Eisenhower, Eisenhower death
27 Merrill, Charles MertonCharles Merton Merrill NV 1907–1996 1959–1974 (none) 1974–1996 Eisenhower, Eisenhower death
28 Koelsch, Montgomery OliverMontgomery Oliver Koelsch ID 1912–1992 1959–1976 (none) 1976–1992 Eisenhower, Eisenhower death
30 Duniway, Benjamin CushingBenjamin Cushing Duniway CA 1907–1986 1961–1976 (none) 1976–1986 Kennedy, Kennedy death
31 Ely, Jr., Walter RaleighWalter Raleigh Ely, Jr. CA 1913–1984 1964–1979 (none) 1979–1984 Johnson, L.L. Johnson death
32 Carter, James MarshallJames Marshall Carter CA 1904–1979 1967–1971 (none) 1971–1979 Johnson, L.L. Johnson death
33 Hufstedler, ShirleyShirley Hufstedler CA 1925–present 1968–1979 (none) (none) Johnson, L.L. Johnson Appointed U.S. Secretary of Education
34 Wright, Eugene AllenEugene Allen Wright WA 1913–2002 1969–1983 (none) 1983–2002 Nixon, Nixon death
35 Kilkenny, John FrancisJohn Francis Kilkenny OR 1901–1995 1969–1971 (none) 1971–1995 Nixon, Nixon death
36 Trask, Ozell MillerOzell Miller Trask AZ 1909–1984 1971–1984 (none) (none) Nixon, Nixon death
37 Choy, HerbertHerbert Choy HI 1916–2004 1971–1984 (none) 1984–2004 Nixon, Nixon death
40 Sneed III, Joseph TyreeJoseph Tyree Sneed III CA 1920-2008 1973–1987 (none) 1987–2008 Nixon, Nixon death
41 Kennedy, AnthonyAnthony Kennedy CA 1936–present 1975–1988 (none) (none) Ford, Ford elevation to Supreme Court
42 Anderson, J. BlaineJ. Blaine Anderson ID 1922–1988 1976–1988 (none) (none) Ford, Ford death
44 Tang, ThomasThomas Tang AZ 1922–1995 1977–1993 (none) 1993–1995 Carter, Carter death
51 Warren John Ferguson CA 1920–2008 1979–1986 (none) 1986–2008 Carter, Carter death
52 Poole, Cecil F.Cecil F. Poole CA 1914–1997 1979–1996 (none) 1996–1997 Carter, Carter death
55 Boochever, RobertRobert Boochever CA 1917-2011 1980–1986 (none) 1986–2011 Carter death
56 Norris, William AlbertWilliam Albert Norris CA 1927–present 1980–1994 (none) 1994–1997 Carter, Carter retirement
59 Cynthia Holcomb Hall CA 1929–2011 1984–1997 (none) 1997–2011 Reagan death
60 Wiggins, Charles EdwardCharles Edward Wiggins CA 1927–2000 1984–1996 (none) 1996–2000 Reagan, Reagan death
61 Brunetti, Melvin T.Melvin T. Brunetti NV 1933–2009 1985–1999 (none) 1999–2009 Reagan, Reagan death
64 Thompson, David R.David R. Thompson CA 1930–2011 1985–1998 (none) 1998–2011 Reagan death
69 Rymer, Pamela AnnPamela Ann Rymer CA 1941–2011 1989–2011 (none) (none) G.H.W. Bush death
70 Nelson, Thomas G.Thomas G. Nelson ID 1936–2011 1990–2003 (none) 2003–2011 G.H.W. Bush death

Chief judges

Chief Judge
Denman 1948–1957
Stephens 1957–1959
Pope 1959–1959
Chambers 1959–1976
Browning 1976–1988
Goodwin 1988–1991
Wallace 1991–1996
Hug 1996–2000
Schroeder 2000–2007
Kozinski 2007–present

Chief judges have administrative responsibilities with respect to their circuits, and preside over any panel on which they serve unless the circuit justice (i.e., the Supreme Court justice responsible for the circuit) is also on the panel. Unlike the Supreme Court, where one justice is specifically nominated to be chief, the office of chief judge rotates among the circuit judges. To be chief, a judge must have been in active service on the court for at least one year, be under the age of 65, and have not previously served as chief judge. A vacancy is filled by the judge highest in seniority among the group of qualified judges. The chief judge serves for a term of seven years or until age 70, whichever occurs first. The age restrictions are waived if no members of the court would otherwise be qualified for the position.

When the office was created in 1948, the chief judge was the longest-serving judge who had not elected to retire on what has since 1958 been known as senior status or declined to serve as chief judge. After August 6, 1959, judges could not become chief after turning 70 years old. The current rules have been in operation since October 1, 1982.

Succession of seats

The court has 29 seats for active judges, numbered in the order in which they were filled. Judges who retire into senior status remain on the bench but leave their seat vacant. That seat is filled by the next circuit judge appointed by the president.

Seat 1
Established on December 10, 1869 by the Judiciary Act of 1869 as a circuit judgeship for the Ninth Circuit
Reassigned to the United States Circuit Court of Appeals for the Ninth Circuit by the Judiciary Act of 1891
Sawyer CA 1891–1891
McKenna CA 1892–1897
Morrow CA 1897–1923
Rudkin WA 1923–1931
Garrecht WA 1933–1948
Pope MT 1949–1961
Browning DC 1961–2000
Ikuta CA 2006–present
Seat 2
Established on June 16, 1891 by the Judiciary Act of 1891
Gilbert OR 1892–1931
Denman CA 1935–1957
Hamlin CA 1958–1963
Ely CA 1964–1979
Norris CA 1980–1994
W. Fletcher CA 1998–present
Seat 3
Established on February 18, 1895 by 28 Stat. 665
Ross CA 1895–1925
McCamant OR 1925–1926
Dietrich ID 1927–1930
Sawtelle AZ 1931–1934
Mathews AZ 1935–1953
Fee OR 1954–1959
Koelsch ID 1959–1976
Anderson ID 1976–1988
T. Nelson ID 1990–2003
N.R. Smith ID 2007–present
Seat 4
Established as a temporary judgeship on March 1, 1929 by 45 Stat. 1414
Made permanent on June 16, 1933 by 48 Stat. 310
Wilbur CA 1929–1945
Orr NV 1945–1956
Barnes CA 1956–1970
Choy HI 1971–1984
Brunetti NV 1985–1999
Rawlinson NV 2000–present
Seat 5
Established on August 2, 1935 by 49 Stat. 508
Haney OR 1935–1943
Bone WA 1944–1956
Hamley WA 1956–1971
Sneed CA 1973–1987
Trott ID 1988–2004
(vacant) (n/a) 2004–present
Seat 6
Established on April 14, 1937 by 50 Stat. 64
Stephens CA 1937–1961
Duniway CA 1961–1976
Hug NV 1977–2002
Bybee NV 2003–present
Seat 7
Established on April 14, 1937 by 50 Stat. 64
Healy ID 1937–1958
Merrill NV 1959–1974
Kennedy CA 1975–1988
Rymer CA 1989–2011
(vacant) (n/a) 2011–present
Seat 8
Established on February 10, 1954 by 68 Stat. 871
Lemmon CA 1954–1958
Jertberg CA 1958–1967
Carter CA 1967–1971
Wallace CA 1972–1996
Wardlaw CA 1998–present
Seat 9
Established on February 10, 1954 by 68 Stat. 871
Chambers AZ 1954–1976
Tang AZ 1977–1993
Hawkins AZ 1994–2010
Murguia AZ 2011–present
Seat 10
Established on June 18, 1968 by 82 Stat. 184
Hufstedler CA 1968–1979
Boochever AK 1980–1986
O'Scannlain OR 1986–present
Seat 11
Established on June 18, 1968 by 82 Stat. 184
Wright WA 1969–1983
Beezer WA 1984–1996
Gould WA 1999–present
Seat 12
Established on June 18, 1968 by 82 Stat. 184
Kilkenny OR 1969–1971
Goodwin OR 1971–1991
Kleinfeld AK 1991–2010
(vacant) (n/a) 2010–present
Seat 13
Established on June 18, 1968 by 82 Stat. 184
Trask AZ 1969–1979
Canby AZ 1980–1996
Silverman AZ 1998–present
Seat 14
Established on October 20, 1978 by 92 Stat. 1629
B. Fletcher WA 1979–1998
Tallman WA 2000–present
Seat 15
Established on October 20, 1978 by 92 Stat. 1629
Schroeder AZ 1979–present
Seat 16
Established on October 20, 1978 by 92 Stat. 1629
Skopil OR 1979–1986
Leavy OR 1987–1997
Graber OR 1998–present
Seat 17
Established on October 20, 1978 by 92 Stat. 1629
Farris WA 1979–1995
McKeown WA 1998–present
Seat 18
Established on October 20, 1978 by 92 Stat. 1629
Alarcon CA 1979–1992
Tashima CA 1996–2004
M.D. Smith CA 2006–present
Seat 19
Established on October 20, 1978 by 92 Stat. 1629
Pregerson CA 1979–present
Seat 20
Established on October 20, 1978 by 92 Stat. 1629
Ferguson CA 1979–1986
Fernandez CA 1989–2002
Callahan CA 2003–present
Seat 21
Established on October 20, 1978 by 92 Stat. 1629
Poole CA 1979–1996
Paez CA 2000–present
Seat 22
Established on October 20, 1978 by 92 Stat. 1629
D. Nelson CA 1979–1995
Thomas MT 1996–present
Seat 23
Established on October 20, 1978 by 92 Stat. 1629
Reinhardt CA 1980–present
Seat 24
Established on July 10, 1984 by 98 Stat. 333
Hall CA 1984–1997
Clifton HI 2002–present
Seat 25
Established on July 10, 1984 by 98 Stat. 333
Wiggins NV 1984–1996
Bea CA 2003–present
Seat 26
Established on July 10, 1984 by 98 Stat. 333
Kozinski DC 1985–present
Seat 27
Established on July 10, 1984 by 98 Stat. 333
Noonan CA 1985–1996
Berzon CA 2000–present
Seat 28
Established on July 10, 1984 by 98 Stat. 333
Thompson CA 1985–1998
Fisher CA 1999–present
Seat 29
Established by Court Security Improvement Act of 2007;[12] Effective Jan. 21, 2009
(vacant) (n/a) 2009–present

See also

Notes

  1. ^ White v. Samsung Elec. Am., Inc., 989 F.2d 1512, 1521 (9th Cir. 1993) (Kozinski, J., dissenting).
  2. ^ Kleinfeld, Andrew J. (1998-05-22). Memo to the Commission on Structural Alternatives for the Federal Courts of Appeals. URL accessed on June 21, 2005.
  3. ^ For a persuasive empirical argument that the Ninth Circuit is not too liberal and that the high percentage of reversals is accounted for by the fact that the Ninth Circuit hears more cases than any other Circuit and that the Supreme Court grants certiorari mostly for cases that will be reversed, see Jerome Farris,The Ninth Circuit--Most Maligned Circuit in the Country Fact or Fiction? 58 Ohio St. L.J. 1465 (1997)(written by Circuit Judge Farris)
  4. ^ O'Scannlain, Diarmuid (October 2005). "Ten Reasons Why the Ninth Circuit Should Be Split" (PDF). Engage 6 (2): 58–64. Archived from the original on 2006-05-10. http://web.archive.org/web/20060510045844/http://www.fed-soc.org/Publications/Engage/Oct+05.pdf. Retrieved 2006-05-29. 
  5. ^ "Statement of Circuit Judge Alex Kozinski to the House Judiciary Subcommittee on Courts" (PDF). The Federal Bar Association. 2003-10-21. http://www.fedbar.org/Kozinski_testimony.pdf. Retrieved 2006-06-06. 
  6. ^ Schroeder, Mary M.; et al. (April 2006). "A Court United: A Statement of a Number of Ninth Circuit Judges" (PDF). Engage 7 (1): 63–66. http://online.wsj.com/public/resources/documents/wsj_court_united.pdf. Retrieved 2006-06-06. 
  7. ^ C-SPAN America and the Courts, (03/17/2007).
  8. ^ Eric J. Gribbin, 47 Duke L.J. 351, law.duke.edu
  9. ^ Testimony of Circuit Judge Richard Tallman: U.S. Court of Appeals for the Ninth Circuit. United States Senate: Committee on the Judiciary. Retrieved on November 19, 2007.
  10. ^ Govtrack.us S. 525--110th Congress (2007): Circuit Court of Appeals Restructuring and Modernization Act of 2007, GovTrack.us (database of federal legislation): govtrack.us (accessed February 18, 2008)
  11. ^ CE9.uscourts.gov
  12. ^ a b Court Security Improvement Act of 2007, Pub. L. 110-177 § 509(a)(2), 121 Stat. 2534, 2543, January 7, 2008
  13. ^ Sawyer was appointed as a circuit judge for the Ninth Circuit in 1869 by Ulysses S. Grant. The Judiciary Act of 1891 reassigned his seat to what is now the U.S. Court of Appeals for the Ninth Circuit.
  14. ^ Hunt did not have a permanent seat on this court. Instead, he was appointed to the ill-fated United States Commerce Court in 1911 by William Howard Taft. Aside from their duties on the Commerce Court, the judges of the Commerce Court also acted as at-large appellate judges, able to be assigned by the Chief Justice of the United States to whichever circuit most needed help. Hunt was assigned to the Ninth Circuit upon his commission.
  15. ^ Recess appointment.
  16. ^ President Coolidge first nominated Wilbur for the judgeship in the final days of his presidency, but the Senate failed to act on it before the 70tb Congress ended on March 3, 1929. "Wilbur Nominated for Judge Post," Woodland Daily Democrat, 1929-03-01 at p. 1 (noting, as the Coolidge Administration ended, that Coolidge nominated Wilbur for the new judgeship); "Sentence Cut Out by Hoover," Oakland Tribune, 1929-03-04, Section D, p. 1 (noting that the Wilbur nomination was not acted upon before the 70th Congress ended). Hoover then resubmitted the nomination to the Senate in the 71st Congress, which approved it.

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