The Successes of Chief Judge Mary Schroeder of the U.S. Court of Appeals for the Ninth Circuit: How She Set the Bar High

By CARL TOBIAS

Tuesday, Dec. 04, 2007

Last Friday, Circuit Judge Mary M. Schroeder concluded her seven-year term as Chief Judge of the United States Court of Appeals for the Ninth Circuit, and Circuit Judge Alex Kozinski began his tenure in that position. Judge Schroeder's understated manner and liberal political views contrast sharply with the flamboyant style and conservative perspectives of Judge Kozinski. However, it seems very likely that the way ChiefJudge Kozinski discharges his responsibility in leading the largest appellate court in the nation will differ minimally from the superb way Judge Schroeder did so, for both jurists appreciate the continuity of the 116-year-old institution the Ninth Circuit represents, and both have great respect for their colleagues.

The Character of the Ninth Circuit, and the Chief Judge's Role

The Ninth Circuit is the biggest of the 12 regional circuits by many standards. The court has the largest number of circuit judges (28) and federal districts (15), receives the highest number of appeals (15,000 annually), and encompasses the most substantial geographic territory (14 million square miles). Moreover, the Ninth Circuit may be the most controversial federal appellate court, mainly because the tribunal is perceived as overly liberal. The quintessential example of this phenomenon is the opinion issued during Chief Judge Schroeder's tenure that held the mandatory recitation of the Pledge of Allegiance unconstitutional due to its reference to God. Ninth Circuit critics also maintain that the court has the highest Supreme Court reversal rate, although that statistic is contested on the ground that, in fact, there seem to be other appeals courts that the Supreme Court reverses just as frequently. Numerous observers have also criticized the Ninth Circuit's magnitude, which they assert delays appellate resolution, fosters inconsistent decisionmaking, and imposes greatexpense. Still, perennial efforts to split the court because of its size and its controversial nature have proved unsuccessful.

The Chief Judge assumes substantial responsibility for the court's administration, essentially attempting to guarantee that the tribunal promptly, economically, and fairly resolves appeals. The Chief Judge presides over the Circuit Judicial Council, which makes policy for the court; serves as one Ninth Circuit representative to the Judicial Conference, the federal judiciary's policymaking arm; and represents the Ninth Circuit before Congress. The Chief Judge is the sole Circuit member who serves on every one of the limited en banc courts, which enunciate binding law for the circuit as a whole, when it rehears a number of the most controversial and significant cases after they have been initially resolved by a three-judge panel.

Chief Judge Schroeder's Admirable Record

Chief Judge Schroeder compiled an extremely successful record over her seven-year tenure. Most of that service tracked President George W. Bush's administration and came at a time when Republicans possessed Senate and House majorities. During that time, Chief Judge Schroeder assiduously opposed and successfully resisted all efforts to divide the Ninth Circuit. Her success is especially salient because GOP majorities controlled both the Senate and the House from 2000 until 2006, while Republicans have long favored and attempted to orchestrate Ninth Circuit realignment.

Chief Judge Schroeder also worked closely with the Republican Senate majority in helping to confirm judges for all of the Ninth Circuit vacancies. This issue had proved difficult for practically all of the 1990s, when the court frequently experienced openings in a third of its positions, and these vacancies complicated efforts to address the country's largest appellate docket. When Judge Schroeder completed her term as Chief Judge, all but one of 28 active judgeships had an occupant.

Chief Judge Schroeder also ensured that the Ninth Circuit expeditiously, inexpensively, and equitably resolved its gigantic caseload, even though filings rose by 70 percent. This docket increase principally resulted from the Bush Administration's decision to "streamline" Board of Immigration Appeals (BIA) determinations. Judge Schroeder helped develop numerous innovative techniques for handling a 600 percent increase in immigration appeals.

Through her frequent travels, Chief Judge Schroeder earned a well-deserved reputation as an ambassador to the enormous, sprawling Ninth Circuit. Comprehensive discharge of this responsibility took the Chief Judge to such far-flung venues as Billings, Montana; Fairbanks, Alaska; Reno, Nevada; Honolulu, Hawaii; Guam; and the Northern Mariana Islands. Her efforts to learn about the problems faced by the 100-plus federal district judges and thousands of dedicated court staff and to facilitate the difficulties' resolution helpedeffectuate positive change and build much goodwill across the nine states and two territories that the Ninth Circuit encompasses, and among judicial officers and court employees. Judge Schroeder was also responsible for significant initiatives that addressed jury reform in the 15 federal districts that comprise the Ninth Circuit, judges' health and wellness, and media relations.A fewendeavors that she instituted also became models that the national judiciary adopted.

In sum, Chief Judge Mary Schroeder deserves substantial credit for successfully addressing a number of complexdifficulties that confronted the Ninth Circuit over her seven-year tenure. Judge Schroeder, accordingly, turns over the leadership reins to Judge Kozinski at a time when the court is in excellent shape, so that he can build on her numerous successes.


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

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