By Jon Kamman
The Arizona Republic
Dec. 1, 2002
Forget those mental images of judges as aging hippies tripping through Haight-Ashbury
on their way to issuing high-minded rulings.
The 9th U.S. Circuit Court of Appeals has its headquarters in San Francisco,
but only two of the court's 24 active judges have their offices there - the
same number as in decidedly unradical Boise, Idaho.
The others, plus 22 senior judges who can retire at full salary but often work full time anyway, are scattered throughout the West. All are paid $159,100 a year.
The circuit covers nine states, Guam and the Northern Mariana Islands.
Chief Judge Mary Schroeder oversees the circuit, the nation's largest, from the new Sandra Day O'Connor U.S. Courthouse in Phoenix.
Schroeder, who has lived and worked in the Valley for three decades, became chief judge two years ago by virtue of seniority. She was appointed in 1979 by President Carter.
Two other active circuit judges in Phoenix, Michael Hawkins and Barry Silverman, were appointed by President Clinton. Senior Judge William Canby, who continues to carry a full load of cases, also was appointed by Carter, a Democrat.
The largest contingent of active judges, six, is based in Pasadena, Calif. Seattle has three; San Francisco, Boise, Los Angeles and Portland, Ore., two each; and Honolulu, Las Vegas, Fairbanks, Alaska, and Billings, Mont., one each.
In operation, federal appellate courts bear little resemblance to a bench of U.S. Supreme Court justices conducting hearings.
Instead, in all but 1 percent of cases, decisions are made by three-judge panels who gather at the courthouse of one of the judges to hear arguments.
With different panels combining to hear cases, circuit judges travel often. After hearings, they exchange e-mail and phone calls to shape the majority opinion and any dissenting view.
A three-judge panel's decision may be appealed directly to the U.S. Supreme Court, but an expanded rehearing also may be conducted at the appellate level. Called an en banc review, it is granted if a majority of eligible judges see a need to re-examine the three-judge panel's decision.
In all other circuits, the entire bench takes part in the rehearing. Because the 9th Circuit is so large, the chief judge and 10 other active jurists chosen at random rehear the case.
That is a source of controversy for the 9th, because the court, depending on the composition of the en banc panel, can produce ideologically inconsistent decisions.
But Arthur D. Hellman, law professor at the University of Pittsburgh and a former director of the 9th Circuit's legal staff, said that research has shown that in more than 90 percent of cases, as few as seven judges sitting en banc would reach the same conclusion as a larger panel.
Judges are appointed by the president with the consent of the U.S. Senate. The 9th Circuit Court has 17 Democratic and seven Republican appointees, giving it the third-highest percentage of Democratic appointees among the 12 federal Circuit Courts, which handle general appeals. (A 13th court hears technical matters such as patent disputes.)
Although the 9th is more likely than other circuits to produce a decision perceived as liberal, "use of the terms 'liberal' and 'conservative,' and use of the party of the appointing president are very crude proxies" for assessing a court's leanings, said Michael Solimine, law professor at Cincinnati University. "The measures are so crude that they border on meaningless, in my opinion."
Since 1984, the court has had congressional authorization for 28 active judges. But political gamesmanship in the Senate, usually having nothing to do with the nominees themselves, withheld judicial confirmations for long periods, and the court has operated for most of a decade with five to 10 vacancies.
The U.S. Judicial Council, a policymaking body for court administration, has recommended enlarging the court to 33 active judges.
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