Congress OKs Extra Seat for 9th Circuit

Dan Levine

The Recorder

An extra seat for the 9th U.S. Circuit Court of Appeals cleared Congress on Tuesday and is headed to President Bush's desk.

The U.S. Senate unanimously passed the Court Security Improvement Act (.pdf) on Monday night, and the House of Representatives approved it on a voice vote Tuesday. Buried in that bill is language that removes one seat from the D.C. Circuit and moves it to the 9th.

The bill had been held up in recent weeks by negotiations between Sens. Arlen Specter and Jeff Sessions, both Republicans on the Senate Judiciary Committee. Specter had been pushing language that would have given all senior district judges the administrative powers that regular judges enjoy, including a vote on the selection of magistrates.

Instead, the bill gives those powers to only those senior district judges who work 50 percent of a full caseload. Neither Sessions' nor Specter's office responded to calls for comment.

Senate Judiciary leaders had been working with House members to address their concerns before sending the bill to the Senate floor.

One of those concerns from the House involved the 9th Circuit seat. Under pressure from Rep. Howard Berman, D-Van Nuys, the seat won't materialize until Jan. 21, 2009 -- the day after President Bush leaves office.

Ninth Circuit Chief Judge Alex Kozinski said he hopes the new seat will break the logjam surrounding the one current vacancy on the court, which was created when Judge Stephen Trott took senior status in 2004. Trott moved to Idaho from California during his tenure, and both states' political leaders are vying for the court's 28th seat.

"Once this goes into law, I hope the president will nominate the 28th slot," Kozinski said.

But the office of California Sen. Dianne Feinstein reiterated its position that the newly created seat -- a California slot -- does not mean the Trott vacancy should go to Idaho.

Asked whether an Idaho nominee from Bush is dead on arrival in the Senate, Feinstein spokesman Scott Gerber said: "We think that seat has been a California seat, and we hope and expect it would be a California seat in the future."

The bill was crafted largely in response to the murder of a Chicago federal judge in 2005 and is aimed at beefing up protection for jurists.

As for the provision concerning senior district judges, Chief Judge Vaughn Walker said he didn't know which ones work 50 percent of a full caseload in the Northern District. The current requirement for senior judges in the Northern District is 25 percent, Walker said.

However, the chief judge pointed out that for as long as he's been on the court, magistrate judges in the Northern District have always received a unanimous vote. Senior judges are already invited to all judges' meetings, Walker said, and he could not recall a situation where they have opposed their colleagues.

"If Lowell Jensen, William Schwarzer, Samuel Conti or Thelton Henderson come to judges meetings and express their view," Walker said, "I can assure you they will be listened to and will probably carry the day."