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United States Court of Appeals for the Ninth Circuit

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The U.S. Court of Appeals for the Ninth Circuit is a federal court with appellate jurisdiction over the following United States district courts:

The Ninth Circuit is by far the largest circuit court in the United States, with 28 active judgeships. The court's regular meeting places are Seattle, Portland, San Francisco, and Pasadena, but panels of the court occasionally travel to hear cases in Alaska, Hawaii, and the Pacific territories over which it has jurisdiction. Its headquarters are in San Francisco.

Contents

History and background

Year Jurisdiction Total Population (000s) Pop. as % of Nat'l Pop. Number of Active Judgeships
1891 CA, ID, MT, NV, OR, WA 2,087 3.3% 2
1900 CA, HI, ID, MT, NV, OR, WA 2,798 3.7% 3
1920 AZ, CA, HI, ID, MT, NV, OR, WA 7,415 6.7% 3
1940 AZ, CA, HI, ID, MT, NV, OR, WA 11,881 9.0% 7
1960 AK, AZ, CA, GU, HI, ID, MT, NV, OR, WA 22,607 12.6% 9
1980 AK, AZ, CA, GU, HI, ID, MT, NMI, NV, OR, WA 37,170 16.4% 23
2000 AK, AZ, CA, GU, HI, ID, MT, NMI, NV, OR, WA 54,575 19.3% 28

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 came under control of 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. The adjoining chart illustrates the scope of the Ninth Circuit's jurisdiction at its inception in 1891 and at 20-year intervals since 1900.

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." 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." [1] (http://www.library.unt.edu/gpo/csafca/hearings/submitted/KLEINFEL.htm)

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. 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. Whatever the motivations of both sides, it is clear that the proposal to split the Ninth Circuit will be as politically incendiary as the recent confirmation battles over circuit court judges.

Controversy

Critics of the Ninth Circuit attack the court on two fronts: first, that it is overwhelmingly politically liberal and out of step with Supreme Court precedent, and second, that the large size of the court impedes effective court administration and increases the risk of intracircuit splits on important issues of law.

Political liberalism

The Ninth Circuit generally has a liberal reputation, though its judges span the gamut from reliably liberal to moderate to socially and fiscally conservative. Like all federal judges, judges on the Ninth Circuit serve for life, and as a result their decisions may diverge sharply from the viewpoint of the president that nominated them. Accordingly, efforts to categorize judges based on their past political affiliation or nominating president are often fruitless. For example, the 2002 majority opinion in Newdow v. United States Congress, 292 F.3d 597 (9th Cir. 2002), rev'd sub nom. Elk Grove Unified Sch. Dist. v. Newdow, 124 S.Ct. 2301 (2004), holding that the phrase "under God" in the Pledge of Allegiance violated the Establishment Clause of the First Amendment to the United States Constitution, was written by Senior Circuit Judge Alfred T. Goodwin, a Richard M. Nixon appointee.

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." The case was litigated by Michael Newdow, an atheist who felt that the daily recitation of the Pledge of Allegiance 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." Reaction to the decision by prominent political leaders, especially those in the House and Senate, was nothing short of apoplectic. 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.

(In 2004, the United States Supreme Court reversed the Ninth Circuit's decision in the Newdow case, as many had predicted. However, the majority opinion did not reach the substantive issue of whether the Pledge violated the Establishment Clause, instead holding that Michael Newdow, whose ex-wife had primary custody of their daughter, did not have standing to litigate the claim in federal court. Minority opinions in the case indicated that several of the Justices disagreed with the Ninth Circuit's Establishment Clause analysis, but those suggestions do not carry the force of law.)

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, No. 03-1454, 125 S.Ct. ____ (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 and United States v. Morrison, 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, 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 a moderate. 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.

The Ninth Circuit's willingness to venture into uncharted legal waters has been said to lead to a high reversal rate by the Supreme Court. A CNN.com article (http://archives.cnn.com/2002/LAW/06/26/pledge.allegiance/) discussing the 2002 Newdow ruling stated that "[t]he 9th Circuit is the most overturned appeals court in the country." This assertion is disputed by legal scholar Erwin Chemerinsky, who found that the Ninth Circuit's reversal rate was near the median of those of the other circuits. [2] (http://llr.lls.edu/volumes/v37-issue1/documents/chemerinsky.pdf)

Size of the court

In addition to concerns over its legal doctrine, critics of the Ninth Circuit point out several adverse consequences of its large size. 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. Supporters of the existing court, however, point out that en banc review is a relatively rare occurrence and that court rules provide for full en banc review in limited circumstances.

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.

  • 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 Republican Senators from Alaska, Montana, Idaho, 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 on Courts, the Internet, and Intellectual Property on October 21, 2003, no vote was held.
  • 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. This proposal would substantially align the states within each new circuit along political lines. Each state proposed as part of the new Ninth and Thirteenth Circuits (except for Alaska) cast its electoral votes for Democrat John F. Kerry in 2004, while each state proposed as part of the new Twelfth Circuit cast its electoral votes for Republican George W. Bush in 2004.

Current composition of the court

As of 2005, the judges on the court are:

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Pending nominees

List of former judges

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(a) Sawyer was appointed to the bench of the United States Circuit Court for the Ninth Circuit in 1869 by Ulysses S. Grant. The Judiciary Act of 1891 reassigned his seat to the U.S. Court of Appeals for the Ninth Circuit.

(b) 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.

(c) Recess appointment.

Chief judges

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In order to qualify for the office of Chief Judge, 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 in the office of Chief Judge 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. Unlike the Chief Justice of the United States, a Chief Judge returns to active service after the expiration of his or her term and does not create a vacancy on the bench by the fact of his or her promotion. See 28 U.S.C. § 45 (http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=browse_usc&docid=Cite:+28USC45).

Succession of seats

The court has twenty-eight seats for active judges. The seats are numbered in order of their creation. If seats were established simultaneously, they are 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.

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