The Challenges Alex Kozinski Faces as the New Chief Judge of the U.S. Court of Appeals for the Ninth Circuit

By CARL TOBIAS

Monday, Dec. 31, 2007

On November 30, Judge Alex Kozinski began his seven-year tenure as Chief Judge of the U.S.. Court of Appeals for the Ninth Circuit, and Mary M. Schroeder concluded her successful term of service. The styles and political perspectives of Judge Kozinski and Judge Schroeder are quite different. Nonetheless, Judge Kozinski's achievements in heading the biggest appeals court will probably equal Judge Schroeder's attainments because both are highly-talented leaders who understand the Ninth Circuit as an institution and enjoy great respect from their colleagues.

I recently evaluated Chief Judge Schroeder's successes in a column for this site. In this article, I will assess the challenges that Chief Judge Kozinski will face.

Why the Ninth Circuit's Chief Judge Position Is Especially Difficult to Occupy

The Ninth Circuit is the largest of the federal appellate courts in terms of numerous parameters. The tribunal has the most circuit judges (28) and federal districts (15), hears the greatest number of appeals (15,000 annually) and includes the biggest territory (14 million square miles). The Ninth Circuit may also be the most controversial, principally because the court is viewed by many (and, arguably, even by the U.S.. Supreme Court) as too liberal. Annual efforts to divide the court due to its magnitude and controversial character, however, have never been successful.

The Ninth Circuit's Chief Judge assumes overall responsibility for the Circuit's functioning and for effectively promoting appeals'prompt, economical and equitable determination. The Chief Judge also heads the Circuit Judicial Council, the court's policymaking arm, as well as represents the Ninth Circuit on the Judicial Conference, which makes policy for the whole federal judiciary, and in the Circuit's dealings with Congress. The Chief Judge is the only circuit member who sits on the limited en banc court, which articulates binding law for the Circuit when it rehears many of the Circuit's most contested and important appeals.

A Brief Summary of Chief Judge Schroeder's Track Record

Chief Judge Schroeder enjoyed considerable success over her term, most of which paralleled President George W. Bush's Administration, when the GOP had majorities in both houses of Congress. She carefully resisted every attempt to split the Ninth Circuit. Her success is particularly notable because Republican majorities controlled each house from 2000 until 2006, and Republicans have traditionally championed Ninth Circuit division.

Judge Schroeder also cooperated with the GOP Senate majority to fill the court's openings. This question had proved vexing for much of the 1990s, when the court often had vacancies representing a third of its seats. As Judge Schroeder passes the torch, however, an impressive 27 of 28 active positions are occupied by judges. She also fostered the prompt, economical and fair disposition of appeals, although caseloads still increased dramatically as a result of the Bush Administration's policy choice to "streamline" Board of Immigration Appeals (BIA) determinations.

In sum, Judge Schroeder leaves the Ninth Circuit in remarkably fine condition, given the difficulties which the tribunal confronted during her tenure.

Judge Kozinski's Reputation and Jurisprudential Views

Judge Kozinski, meanwhile,cultivates a hard-earned reputation as an iconoclast. He is the son of Holocaust survivors from Romania, and came to the U.S.. at age twelve. Kozinski clerked for then-Ninth Circuit Judge Anthony Kennedy and Supreme Court Justice Warren Burger. In 1982, President Reagan named Kozinski Chief Judge of the new U.S.. Claims Court, and in 1985, Reagan placed him on the Ninth Circuit, making Kozinski then the country's youngest appellate judge.

The term"conservative" does not fully capture Kozinski's jurisprudential views. The jurist has stated that a conservative president selected him and that he possesses "conservative instincts."However, the judge also has said that he believes "in important principles of freedom"-- freedom of speech and religion, and the protection of personal privacy -- and labels himself a constitutionalist.

The Challenges Kozinski Will Confront as Chief Judge

Kozinski will confront numerous challenges as he assumes leadership of the Ninth Circuit. Foremost among them will be improving the court's delivery of appellate justice. For instance, the tribunal requires one-and-a-quarter years to decide appeals, making it the slowest among the twelve regional circuits.

Certain prior efforts by Judge Schroeder efforts should facilitate Judge Kozinski's tasks. For example, the time to disposition should improve with a full complement of judges. The recently-passed Judicial Improvements Act concomitantly transfers the twelfth judgeship on the D.C. Circuit to the Ninth Circuit, which will increase judicial resources.

Kozinski may also benefit from the 2008 elections. For instance, numerous GOP Senate retirements mean that Democrats will probably increase their majority. That result would remove circuit-splitting as an issue until at least 2011. If a Democrat captures the White House, moreover, a judgeships bill that authorizes five additional Ninth Circuit positions may pass. In addition, a new presidential administration might well reverse the BIA streamlining policy mentioned above, thus substantially relieving docket pressure.

Finally, some observers question whether Kozinski's style will enable him to lead the court, a task frequently described as "herding cats." For example, Judge Schroeder asked her successor to "keep in mind we operate the best when we have the good will of all the judges in the circuit." Kozinski also seems keenly aware of this issue. For instance, he admitted that "it is hard to be a renegade when you're in the establishment. I'm going to have to work that one out." However, the collegiality which all the Ninth Circuit judges work so avidly to promote suggests this will not be a problem, and that Judge Kozinski very likely will continue Judge Schroeder's record of impressive successes.


Carl Tobias is the Williams Professor at the University of Richmond School of Law.

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