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The 9th U.S. Circuit Court of Appeals newly revised rules for membership on its governing body have the effect of excluding just one of the court’s judges from potential membership — conservative Judge Andrew Kleinfeld of Fairbanks, Alaska. In addition, the new rules, announced July 19, would enhance the power of the circuit’s largest judicial district, the Los Angeles-based Central District, by giving it a permanent seat on the council. The circuit’s Judicial Council oversees a host of administrative jobs, including judicial discipline proceedings, internal personnel matters, court buildings and supervision of the circuit executive. The council has 11 voting members, including five circuit judges, five district judges and the chief judge of the circuit presides. One of the five circuit judge spots has always been reserved for the next in line to be chief judge �— jokingly nicknamed the Prince of Wales seat. Judge Alex Kozinski of Pasadena, Calif., starts his seven-year tenure as chief after Chief Judge Mary Schroeder’s term ends November 30. Under court rules of seniority and age, Kleinfeld, a Republican appointee of President George H.W. Bush, would be next in line until he turns 65, which is little more than two years away. Once past 65, judges are ineligible for appointment as chief. The job would then shift to Judge Sidney Thomas, a Democratic appointee of President Bill Clinton, who is expected to take over when Kozinski’s tenure ends in 2014. Judge Diarmuid O’Scannlain, of Portland, Ore., called the provision excluding Kleinfeld “unfortunate and unnecessary.” Under the old rule, Kleinfeld could have served two years, now he can’t serve at all, O’Scannlain said. “What I am reacting to is this needless step that only applies to him,” he said. Schroeder said the point of the rule change was to create more continuity and longer tenure on the council, which has been plagued with rapid turnover. “There was a constant revolving door and it was difficult to maintain institutional memory,” she said. O’Scannlain is among a minority of opponents to the revision. The rule change was “overwhelmingly approved by the judges,” Schroeder said, and she rejected any suggestion that this has to do with either Kleinfeld’s conservative judicial philosophy or reflects on his administrative ability. “This is policy, not personality,” she said. She added that she has not heard a complaint from Kleinfeld. Kleinfeld declined to return calls seeking comment. The new rules create a voting seat on the council for the circuit judge who is eligible to become chief at the end of the current chief’s “expected tenure.” That 2014 date would make Kleinfeld ineligible for council membership even over the next two years, unless Kozinski were to specially appoint him. Asked about that possibility, Kozinski said, “I have no idea. You expect me to spend time thinking about what decisions I would make as chief judge? I cringe at the thought,” he said. “The Prince of Wales rule was intended to avoid choppy service on the council,” he said. Kozinski said he considered the rule changes, proposed by a committee, to be reasonable but that he had not studied them in detail.

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