II. The Ninth Circuit's First Judges

In the western states, formation of the circuit court of appeals in 1891 signaled more than the creation of a new judicial structure. It also symbolically represented the passing of the torch from an old generation of jurists who had served on the federal bench for decades to a new generation whose jurisprudence would light the way well into the twentieth century. Two seminal figures of the old generation, Lorenzo Sawyer and Ogden Hoffman, would die before the end of 1891. Two more, Justice Stephen Field and Judge Matthew Deady, would be dead by the end of the decade. This transformation in personnel augured significant changes for western litigants in the adjudication of numerous disputes, from mining law to Chinese rights, although it produced no greater comity among the federal judges.^[26]

The Evarts Act authorized two judgeships for each circuit. One of these was to be assumed by the sitting circuit judge: in the Ninth Circuit, Lorenzo Sawyer. Before the court heard its first case in October of 1891, however, Sawyer and Hoffman both died; President Harrison was thus faced with the task of filling one district and two appellate judgeships. It went without saying that California, the largest and most populous state in the Ninth Circuit, would be represented on the court. But the informal practice of reserving judgeships for constituent states also dates from this period, and most observers correctly surmised that someone from Oregon or Washington would receive the other commission.^[27]

The two leading candidates for the California "seat" on the Ninth Circuit and the northern California district judgeship were Joseph McKenna and William W. Morrow, who both coveted the more prestigious appellate seat. They had become friends during their service in Congress in the years before Harrison made his selections. When the president named Morrow to the district judgeship, the San Franciscan withdrew from consideration for the circuit judgeship, thus paving the way for McKenna's nomination. McKenna had been born in Philadelphia on November 10, 1843, and his parents had moved to Benicia, California, in late 1854. Originally hoping to become a priest, McKenna attended Catholic schools before changing his mind and embarking upon a career in the law. He graduated from Benicia Collegiate Institute in 1865; later that year he gained admittance to the California bar. Shortly after commencing his practice in Fairfield, California, he won sufficient recognition to become the county attorney for Solano County, California, from 1866 to 1870. McKenna served briefly in the Califor-

nia legislature, from 1875 to 1876, but ambition drove him to seek a seat in the United States Congress three times—in 1876, 1878, and 1880—without success. He persisted, however, and in 1884 he was at last elected. He served in Congress from March 4, 1885, to March 28, 1892, when he resigned to accept President Harrison's appointment as circuit judge for the Ninth Circuit.^[28]

McKenna's tenure on the Ninth Circuit was short—approximately five years—and in that time he evinced a greater ability to maintain his political friendships than to attract the respect and admiration of his judicial brethren in the Far West. Rumors abounded that the principals of the Southern Pacific Railroad had been responsible for his appointment. It is impossible to evaluate the veracity of these rumors, but certainly fears that McKenna would prove to be a lackey of railroad interests were unfounded. Charges of dilatoriness and indifference to judging flourished, however, fed by his slow work style.^[29] Despite these contentions, the Supreme Court rarely reversed McKenna and his opinions reflected competence, if not brilliance.

The main source of the ill feeling toward McKenna stemmed from his relationship with Judge William B. Gilbert, who was appointed to the Ninth Circuit in 1892 to fill the second judgeship created by the Evarts Act. Very little is known about Gilbert, despite his having served on the Ninth Circuit for nearly forty years. Born July 4, 1847, in Fairfax County, Virginia, Gilbert was named for his illustrious ancestor Colonel William Ball, who emigrated from England to Virginia in 1650 and was the grandfather of George Washington's mother, Mary Ball. The Gilbert family did not share the Confederate sympathies of other prominent Virginia families. A Unionist, John Gilbert relocated his family to Ohio sometime before the Civil War began, but his son William did not serve in the Union Army, instead attending Williams College, where he was graduated in 1866. After accompanying a scientific expedition in the upper Amazon, the future Ninth Circuit judge spent two years on a geological survey in Ohio.^[30]

Abandoning these initial flirtations with science, Gilbert enrolled in the University of Michigan, where he received a Bachelor of Laws degree in 1872. The following year, he moved to Portland, Oregon, his home for the remainder of his life. A member of the Portland bar, Gilbert practiced law in a succession of partnerships from 1873 to 1892, when President Harrison announced his nomination of Gilbert as circuit judge. The nomination appeared to encounter little opposition until it was revealed that Wallace McCamant, one of Gilbert's associates in Gilbert

& Snow, had written to a friend that "Mr. Gilbert's appointment would be to my professional and pecuniary advantage." Unexplained, this message raised obvious questions about Gilbert's rectitude. McCamant hastily attempted to undo the damage by writing a series of letters to senators and the attorney general accounting for this statement. Apparently Gilbert's law partner, Zera Snow, had suggested to McCamant that he would be offered the partnership if Gilbert ascended to the bench. This explanation of "pecuniary advantage" was clearly more palatable than others, and the Senate gave its advice and consent to Gilbert's appointment on March 18, 1892.^[31] Although Gilbert managed to avoid ignominy from his young associate's remarks, McCamant himself was less successful three decades later, when he would irrevocably damage his own nomination to the Ninth Circuit in 1925 through another imprudent choice of words.^[32]

For nearly thirty-five years Gilbert was the ranking circuit judge in the Ninth Circuit, and for a considerable time before his death in 1931 he was the ranking circuit judge in the United States in length of service.^[33] In his long judicial career, Gilbert's opinions were to span almost three hundred volumes of the Federal Reporter , including many of the most important decisions rendered by the Ninth Circuit. Tireless, industrious, and possessed of great charm, Gilbert was very much a nineteenth-century man, even though more than a third of his life was spent in the twentieth. He refused to ride in an automobile, an invention he decried as "a symbol of the new mechanical age." His anachronistic view of progress did not, however, dim the significance of his many contributions to the development of Ninth Circuit law. In the ensuing decades, Gilbert wrote for the court in the Stanford controversy, a notorious Alaska gold-mining scandal, one of the Teapot Dome suits, and the Olmstead case, which established the constitutional authority of the government to impose wiretaps without search warrants. Yet despite gaining nationwide prominence as a judge, Gilbert zealously guarded his privacy. His "passion for inconspicuousness" extended to never carrying a bundle on a street car, "fearing," he confided, "to attract attention."^[34] He performed his judicial service with little fanfare, leaving the public spotlight to Erskine Ross and William Morrow, his colleagues of nearly a quarter-century.