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A new No. 1 at the 9th Circuit

November 30, 2007|Carl Tobias | Carl Tobias is a professor at the University of Richmond School of Law.

Today, Mary M. Schroeder completes her seven-year tenure as chief judge of the U.S. 9th Circuit Court of Appeals, and Alex Kozinski commences his term. The 9th Circuit, which is the biggest and busiest of the 12 regional circuit courts in the country, is also widely believed to be its most liberal -- so it is not insignificant that Schroeder's understated manner and liberal political views contrast with the flamboyant style and conservative perspectives of Kozinski.

The 9th Circuit, which hears federal appeals from California and eight other Western states, has more judges (28) than any other circuit court, receives the highest number of appeals (15,000 annually) and encompasses the largest territory (1.3 million square miles). It also may be the most controversial because of perennial conservative complaints that it is excessively liberal. Repeated efforts to split the court because of its size and controversial politics have proved unsuccessful.

The chief judge has overall responsibility for circuit operations -- basically ensuring the expeditious, inexpensive and fair disposition of appeals -- and is the court's public face. The chief judge also heads the Circuit Judicial Council, the court's policymaking arm; represents the 9th Circuit on the Judicial Conference, which makes policy for the entire federal judiciary; and represents the 9th Circuit in its dealings with Congress. The chief judge is the only one of the circuit's judges who always serves on the court's "en banc" panels that rehear many of the most controversial and important appeals.

Schroeder, 66, compiled a highly successful record in her tenure, most of which overlapped with President Bush's administration and a period when Republicans enjoyed majorities in both houses of Congress. She resisted all efforts (backed by the GOP) to split the 9th Circuit, but at the same time cooperated with the Republican Senate majority to ensure that 9th Circuit vacancies were filled. As Schroeder hands over the reins, 27 active judgeships are filled.

Kozinski, nearly a decade younger than Schroeder, enjoys a well-deserved reputation as an iconoclast or, some would say, eccentric. Born to Holocaust survivors in Bucharest, Romania, Kozinski came to the U.S. at age 12. He grew up in Los Angeles, attending Marshall High School and UCLA before clerking for then-9th Circuit Judge Anthony Kennedy and U.S. Chief Justice Warren Burger. In the early 1980s, President Reagan appointed Kozinski as chief judge of the new U.S. Claims Court, and in 1985, Reagan appointed him to the 9th Circuit, making him the nation's youngest appellate judge.

Still, the "conservative" label does not quite capture Kozinski's jurisprudential views. He has said that a conservative president appointed him and that he tends "to have conservative instincts" but also believes strongly "in important principles of freedom" -- freedom of speech, religion and personal privacy. He once famously explained the 9th Circuit's judicial independence by remarking that its judges were three time zones away from the Supreme Court and the nation's capital.

Stories abound. Kozinski often writes 50 drafts of opinions, working 80-hour weeks alongside his clerks, whom he sends 3 a.m. e-mails. Forty of his clerks have gone on to become Supreme Court clerks. The judge also corresponded for a number of years with a death row prisoner -- and ultimately visited the man at San Quentin State Prison, prompting prosecutors to question the judge's ability to be impartial in future capital punishment cases.

Kozinski's personal eccentricities are legion. In his younger days, he was a winning contestant on "The Dating Game." He has been a magician, bungee jumper, scuba diver and snowboarder, and he raises chickens at his Southern California house. Kozinski openly admits that he would like a Supreme Court appointment. The court's news release announcing today's transfer of power notes that Kozinski is assuming the job because of his seniority -- but adds, in what is almost certainly a Kozinski touch: "Judge Kozinski also believes that looks count, though he can provide no support for that proposition."

Kozinski's greatest challenge will be improving the 9th Circuit's record of delivering appellate justice. The court currently takes an average of 16 months to resolve cases, the slowest in the appellate system.

Despite his political disagreements with Schroeder, Kozinski's leadership of the court probably will not differ very dramatically from hers. Both jurists respect their colleagues, appreciate the 116-year history of the 9th Circuit and have no interest in radical change. Some observers do wonder whether Kozinski's personal style, candor and outspokenness will occasionally stand in the way of his ability to lead the court successfully, a task often referred to as "herding cats." For example, Schroeder admonished Kozinski to "keep in mind we operate the best when we have the goodwill of all the judges in the circuit." Even Kozinski admits that "it is hard to be a renegade when you're in the establishment. I'm going to have to work that one out."

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