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06 January 2008
On Jan. 2, an article by the Los Angeles Times’ David G. Savage reported, “After nearly seven years in the White House, President Bush has named 294 judges to the federal courts, giving Republican appointees a solid majority of the seats, including a 60%-to-40% edge over Democrats on the influential U.S. appeals courts.”
The article goes on to note that only the San Francisco-based 9th U.S. Circuit Court of Appeals now has a sizeable majority of Democratic appointees. Yet even the 9th Circuit is beginning to look more Republican than in quite some time, and that’s not based only on the addition of quite a few recent George W. Bush appointees. Most notably, on Nov.30, 2007, Reagan appointee Alex Kozinski became the 9th Circuit’s chief judge.
At every other federal appellate court, serving as chief judge entails much additional administrative work and perhaps less influence on the court’s jurisprudence if the person serving as chief judge chooses to reduce his or her appellate caseload. But in the 9th Circuit, the chief judge has a power that all other active judges can only envy: He or she is guaranteed to preside over every case that the 9th Circuit decides to reconsider en banc, while the remaining 20-plus judges can only hope that they will be randomly selected to fill one of the other 10 seats on the 11-judge en banc panel.
Because en banc cases tend to be, or at least are supposed to be, the most important cases that a federal appellate court decides, having a guaranteed seat to preside over every 9th Circuit en banc case gives the chief judge substantial additional influence that his colleagues lack. Moreover, when the chief judge is among the majority in deciding an en banc case’s outcome, the chief judge then has the additional power to assign the preparation of the majority opinion to any one of the judges in the majority.
Kozinski’s ascension to chief judge is important in its own right, but it also gave rise to a phenomenon that had not occurred for more than 25 years. When Kozinski moved into that role on the 9th Circuit, that meant that all 13 of the nation’s federal appellate courts had chief judges who had been appointed by presidents of the same political party.
Then again, if you blinked, you may have missed that landmark impact, because the tide is already shifting. On Jan. 1 of this year, Clinton appointee Robert H. Henry became chief judge of the Denver-based 10th U.S. Circuit Court of Appeals. And in June, if not sooner, Clinton appointee Sandra L. Lynch is due to become the 1st Circuit’s chief judge. Furthermore, if Kozinski serves his entire term as chief judge, the individual who will succeed him in that role will be Sidney R. Thomas, yet another Clinton appointee.
On the occasion of Kozinski’s promotion to chief judge, I challenged the readers of my “How Appealing” blog to figure out when was the last time, if ever, that all the federal appellate courts had chief judges who were appointed by presidents from the same party. The answer, which a reader correctly supplied, was between April 6, 1981, and Oct. 1, 1981. For that period, all the chief judges in question had been appointed by Democratic presidents.
The Democratic stranglehold on the United States’ federal appellate chief judgeships began when Republican appointee Clement F. Haynsworth Jr. was succeeded on the 4th Circuit by Democratic appointee Harrison L. Winter. The Democratic lock on the chief judgeships ended when the 11th Circuit was split off from the 5th Circuit. At that point, the Democratic appointee who was chief judge of the 5th Circuit began to fill that post on the new circuit, and a Republican appointee, Charles Clark, succeeded him on the 5th Circuit.
History teaches that courts are subject to change, whether they are dominated by liberals or conservatives, or by Republican or Democratic appointees. During the past seven presidential election cycles, a Democratic candidate reached the White House only two times. Based on those results, one might expect to see a nearly 70-30 Republican split among federal appeals court appointees, exceeding even that noted in the Los Angeles Times report. And if the electorate wants more Democratic appointees on the federal bench, it seems that their only hope is to put a Democrat in the White House.
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