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Longtime head of 9th Circuit

May 09, 2012|Carol J. Williams
  • Former 9th U.S. Circuit Court of Appeals Chief Judge James Browning was considered an old school liberal.
Former 9th U.S. Circuit Court of Appeals Chief Judge James Browning was… (Associated Press )

James R. Browning, the rural Montana native who rose to head the powerful U.S. 9th Circuit Court of Appeals and unified its diverse judges in campaigns to enlarge the bench and protect the sprawling circuit from division, has died. He was 93.

Browning died Saturday at a Marin County hospital, the court said in a Monday night announcement. The cause was not given.

Browning was the last 9th Circuit judge appointed by President Kennedy, whom he met on Inauguration Day 1961, when, as clerk of the U.S. Supreme Court, he held the Bible as the chief justice swore the youngest chief executive into office.

A force on the 9th Circuit for more than half a century, Browning's greatest contribution, in his own estimation and that of others, was protecting the vast circuit spanning nine states and two Pacific territories from being split into two or three courts, diminishing its authority to decide most laws for one-fifth of the nation.

For The Record
Los Angeles Times Friday, May 11, 2012 Home Edition Main News Part A Page 4 News Desk 2 inches; 74 words Type of Material: Correction
Judge James R. Browning: The obituary in the May 9 LATExtra section of Judge James R. Browning, former chief justice of the U.S. 9th Circuit Court of Appeals, said that President Kennedy was the United States' youngest chief executive sworn into office. In fact, Theodore Roosevelt was 42 when he took office after the assassination of William McKinley. Kennedy was the youngest person elected president, but he was 43 when he was sworn in.

Many in Congress had come to believe the Western appeals court had grown too large to function efficiently. In the mid-1970s, when lawmakers sought to consider splitting up the circuit while addressing the backlogged court's plea for more judges, Browning lobbied what were then 12 fellow judges on the appeals bench to send a unified call to Congress to provide the new judges first and consider the contentious division proposal later.

"Judge Browning quickly realized that if the court was to have any hope of getting the judges it so badly needed, the judgeship requests would have to be separated from issues of circuit division," recalled Arthur Hellman, a University of Pittsburgh law professor and 9th Circuit historian.

"He kept the circuit together in the face of strong political pressures to divide it. He did this with skill and charm and a tremendous ability to work with people," Hellman said.

Testament to Browning's talent for low-key persuasion, Browning got all 18 senators from the 9th Circuit states, both Republicans and Democrats, to join in the appeal for expanding the bench quickly. The strategy succeeded, and the court was given 10 new judgeships that were filled by President Carter, imprinting the bench with the liberal image it still retains for many.

The circuit split idea failed before several Congresses and was eventually abandoned in the 1980s, but not before Browning responded to the lawmakers' call for reform of and innovation on the giant court.

"While we are always saddened by the loss of a valued colleague, the passing of Judge Browning truly marks the end of an era for the 9th Circuit," Chief Judge Alex Kozinski said. "On the bench, Judge Browning was a distinguished jurist who cared deeply about achieving justice. In judicial governance, he was an innovative administrator, who cajoled the court into the computer age. As importantly, perhaps, he was a genuinely warm and caring human being, famous for the twinkle in his eye, who brightened the lives of everyone around him."

The court's stately headquarters in San Francisco was renamed for Browning in 2005 after its renovation, a tribute Kozinski described as a rightful honoring of the judge who served the court for more than 50 years, including 12 as its chief judge from 1976 to 1988.

During his tenure as chief judge from 1976 to 1988, Browning introduced an automated docketing system, consolidated related issues and assigned them to the same judges to create expert panels. He also devised the "limited en banc" review, a sitting of 11 judges for cases involving particularly important questions of law over which the three-judge panels were split, in conflict with other circuit courts' interpretations or thought to be unrepresentative of the court majority. The 9th Circuit was the first to gather en banc without all active judges taking part.

Bringing harmony to the often polarized court was a priority for the even-tempered Browning, he told The Times in an interview at the end of his stint as head of the 9th Circuit.

"A chief judge tends to take a neutral point of view," Browning said. "I have not cast a vote one way or another to keep the peace, but this 12 years has convinced me that the court can do its best work if it works in harmony, and I will continue to work for that, no matter what. There isn't any position or any issue that seems to me of comparable importance."

The longer he served on the bench, he said, the more "you see there is ground upon which everybody really can walk, and the extremes become less interesting, or necessary."

At the end of Browning's term as chief judge, former U.S. Supreme Court Chief Justice Warren E. Burger praised his 9th Circuit colleague as "a court administrator combining the skills of Soviet leader Mikhail S. Gorbachev and symphony conductor Arturo Toscanini."

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