Panels of the court occasionally travel to hear cases in other locations within the circuit. Although the judges travel around the circuit, the court arranges its hearings so that cases from the northern region of the circuit are heard in Seattle or Portland, cases from southern California are heard in Pasadena, and cases from northern California, Nevada, Arizona, and Hawaii are heard in San Francisco. For lawyers who must come and present their cases to the court in person, this administrative grouping of cases helps to reduce the time and cost of travel.
United States Court of Appeals for the Ninth Circuit
The Ninth Circuit also had jurisdiction over certain American interests in China, in that it had jurisdiction over appeals from the United States Court for China during the existence of that court from 1906 through 1943.[fn 1]
The Richard H. Chambers U.S. Court of Appeals, Pasadena, California
The cultural and political jurisdiction of the Ninth Circuit is just as varied as the land within its geographical borders. In a dissenting opinion in a rights of publicity case involving the Wheel of Fortune star Vanna White, Circuit Judge Alex Kozinski sardonically noted that "[f]or better or worse, we are the Court of Appeals for the Hollywood Circuit." Judges from more remote parts of the circuit note the contrast between legal issues confronted by populous states such as California and those confronted by rural states such as Alaska, Idaho, Montana, and Nevada.
Judge Andrew J. Kleinfeld, who maintains his judicial chambers in Fairbanks, Alaska, wrote in a letter in 1998: "Much federal law is not national in scope....It is easy to make a mistake construing these laws when unfamiliar with them, as we often are, or not interpreting them regularly, as we never do."
Rate of overturned decisions
Some argue the court's rulings are reversed by the Supreme Court at a higher rate than other courts.
From 1999 to 2008, of the 0.151% of Ninth Circuit Court rulings that were reviewed by the Supreme Court, 20% were affirmed, 19% were vacated, and 61% were reversed; the median reversal rate for all federal appellate courts was 68.29% for the same period. From 2010 to 2015, of the cases it accepted to review, the Supreme Court reversed around 79 percent of the cases from the Ninth Circuit, ranking its reversal rate third among the circuits; the median reversal rate for all federal circuits for the same time period was around 70 percent.
Some argue the court's high percentage of reversals is illusory, resulting from the circuit hearing more cases than the other circuits. This results in the Supreme Court reviewing a smaller proportion of its cases, letting stand the vast majority of its cases.
Some argue that the Ninth Circuit faces several adverse consequences of its large size.
Chief among these is the Ninth Circuit's unique rules concerning the composition of an en banc court. In other circuits, en banc courts are composed of all active circuit judges, plus (depending on the rules of the particular court) any senior judges who took part in the original panel decision. By contrast, in the Ninth Circuit it is impractical for 29 or more judges to take part in a single oral argument and deliberate on a decision en masse. The court thus provides for a limited en banc review of a randomly selected 11 judge panel. This means that en banc reviews may not actually reflect the views of the majority of the court and indeed may not include any of the three judges involved in the decision being reviewed in the first place. The result, according to detractors, is a high risk of intracircuit conflicts of law where different groupings of judges end up delivering contradictory opinions. That is said to cause uncertainty in the district courts and within the bar. However, en banc review is a relatively rare occurrence in all circuits and Ninth Circuit rules provide for full en banc review in limited circumstances.
All recently proposed splits would leave at least one circuit with 21 judges, only two fewer than the 23 that the Ninth Circuit had when the limited en banc procedure was first adopted. In other words, after a split at least one of the circuits would still be using limited en banc courts.
Congressional officials, legislative commissions, and interest groups have all submitted proposals to divide the Ninth Circuit such as:
Ninth Circuit Court of Appeals Reorganization Act of 1993, H.R. 3654
Final Report of the Commission on Structural Alternatives for the Federal Courts of Appeals
Ninth Circuit Court of Appeals of Reorganization Act of 2003, S. 562
Ninth Circuit Court of Appeals Judgeship and Reorganization Act of 2003, H.R. 2723
Ninth Circuit Judgeship and Reorganization Act of 2004, S. 878 (reintroduced as the Ninth Circuit Judgeship and Reorganization Act of 2005, H.R. 211, and co-sponsored by House Majority Leader Tom DeLay)
Circuit Court of Appeals Restructuring and Modernization Act of 2005, S. 1845
Circuit Court of Appeals Restructuring and Modernization Act of 2007, S. 525
Chief judges have administrative responsibilities with respect to their circuits, and preside over any panel on which they serve unless the circuit justice (i.e., the Supreme Court justice responsible for the circuit) is also on the panel. Unlike the Supreme Court, where one justice is specifically nominated to be chief, the office of chief judge rotates among the circuit judges. To be chief, a judge must have been in active service on the court for at least one year, be under the age of 65, and have not previously served as chief judge. A vacancy is filled by the judge highest in seniority among the group of qualified judges. The chief judge serves for a term of seven years or until age 70, whichever occurs first. The age restrictions are waived if no members of the court would otherwise be qualified for the position.
When the office was created in 1948, the chief judge was the longest-serving judge who had not elected to retire on what has since 1958 been known as senior status or declined to serve as chief judge. After August 6, 1959, judges could not become or remain chief after turning 70 years old. The current rules have been in operation since October 1, 1982.
Succession of seats
The court has 29 seats for active judges, numbered in the order in which they were filled. Judges who retire into senior status remain on the bench but leave their seat vacant. That seat is filled by the next circuit judge appointed by the president.
Established on December 10, 1869 by the Judiciary Act of 1869 as a circuit judgeship for the Ninth Circuit
Reassigned to the United States Circuit Court of Appeals for the Ninth Circuit by the Judiciary Act of 1891
^The population of China is not included in the above chart for 1920 or 1940, since the Court for China lacked plenary jurisdiction over China's domestic population, then numbering about 430 million people; the court exercised only extraterritorial jurisdiction over the relatively small number of American citizens in China.
^Frederick, David C. (1994). Rugged justice: the Ninth Circuit Court of Appeals and the American West, 1891-1941. University of California Press. ISBN 9780520083813.
^See, e.g., Republic of China v. Merchants' Fire Ass'n of N.Y., 49 F.2d 862 (9th Cir. 1931). As the court noted, this bizarre insurance claim dispute arose directly from the "perplexing" civil war during China's warlord era, in which various groups of military officers claimed to be the representatives of the Republic's legitimate government.
^Jerome Farris, The Ninth Circuit—Most Maligned Circuit in the Country Fact or Fiction? 58 Ohio St. L.J. 1465 (1997) (noting that, in 1996, the Supreme Court let stand 99.7 percent of the Ninth Circuit's cases).
^Hunt did not have a permanent seat on this court. Instead, he was appointed to the ill-fated United States Commerce Court in 1911 by William Howard Taft. Aside from their duties on the Commerce Court, the judges of the Commerce Court also acted as at-large appellate judges, able to be assigned by the Chief Justice of the United States to whichever circuit most needed help. Hunt was assigned to the Ninth Circuit upon his commission.
^President Coolidge first nominated Wilbur for the judgeship in the final days of his presidency, but the Senate failed to act on it before the 70tb Congress ended on March 3, 1929. "Wilbur Nominated for Judge Post," Woodland Daily Democrat, 1929-03-01 at p. 1 (noting, as the Coolidge Administration ended, that Coolidge nominated Wilbur for the new judgeship); "Sentence Cut Out by Hoover," Oakland Tribune, 1929-03-04, Section D, p. 1 (noting that the Wilbur nomination was not acted upon before the 70th Congress ended). Hoover then resubmitted the nomination to the Senate in the 71st Congress, which approved it.
^Court Security Improvement Act of 2007, Pub. L. 110-177 § 509(a)(2), 121 Stat. 2534, 2543, January 7, 2008
Atsushi Wallace Tashima (born June 24, 1934) is a Senior United States Circuit Judge of the United States Court of Appeals for the Ninth Circuit and a former United States District Judge of the United States District Court for the Central District of California. He is the third Asian American and first Japanese American to be appointed to a United States Court of Appeals.
Alfred Theodore Goodwin (born June 29, 1923) is a Senior United States Circuit Judge of the United States Court of Appeals for the Ninth Circuit and previously was a United States District Judge of the United States District Court for the District of Oregon.
Andrew Jay Kleinfeld (born June 12, 1945) is a Senior United States Circuit Judge of the United States Court of Appeals for the Ninth Circuit, stationed in Fairbanks, Alaska and a former Judge of the United States District Court for the District of Alaska.
Edward Leavy (born August 14, 1929) is a Senior United States Circuit Judge of the United States Court of Appeals for the Ninth Circuit and a former judge for the United States Foreign Intelligence Surveillance Court of Review. Prior to these positions, Leavy was a United States District Judge of the United States District Court for the District of Oregon.
Ferdinand Francis Fernandez (born May 29, 1937) is a Senior United States Circuit Judge of the United States Court of Appeals for the Ninth Circuit and a former United States District Judge of the United States District Court for the Central District of California.
John Clifford Wallace (born December 11, 1928) is a Senior United States Circuit Judge of the United States Court of Appeals for the Ninth Circuit and previously was a United States District Judge of the United States District Court for the Southern District of California.
Michael Daly Hawkins (born February 12, 1945) is a Senior United States Circuit Judge of the United States Court of Appeals for the Ninth Circuit, and is resident in Phoenix, Arizona at the Sandra Day O'Connor United States Courthouse.
Norman Randy Smith (born August 11, 1949) is a Senior United States Circuit Judge of the United States Court of Appeals for the Ninth Circuit. He currently lives and maintains chambers in Pocatello, Idaho.
Richard Charles Tallman (born March 3, 1953) is a Senior United States Circuit Judge of the United States Court of Appeals for the Ninth Circuit and a Judge of the United States Foreign Intelligence Surveillance Court of Review.
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