I. The Appointment of Wilbur

When William H. Hunt took senior status by retiring from active service on January 31, 1928, the number of judges authorized for the Ninth Circuit fell to three. Congress had specifically provided in 1913 that Hunt's position, which it originally established for the Commerce Court, was not to be filled upon his death, resignation, or retirement. The court, however, desperately needed a fourth, and arguably a fifth judge. Congress attempted to redress this personnel shortage by creating a fourth judgeship on March 1, 1929, in the dying days of the Coolidge presidency. For reasons its records do not elucidate, Congress displayed deep ambivalence, despite a steadily increasing caseload, about the Ninth Circuit's need for four judges. As originally drafted, the House version provided simply for the authorization of one additional judge, but the Senate Judiciary Committee appended a second section to the bill the full Congress eventually passed. According to the final version, "When a vacancy shall occur due to the death, resignation, or retirement of the present senior judge of [the Ninth Circuit] such vacancy shall not be filled unless authorized by Congress."^[3] This provision singled out Judge Gilbert, who was eighty-one at the time and in deteriorating health. As a whole, the statute sent conflicting signals: it provided stopgap help to the court while abolishing a badly needed position. On the one hand, the legislative history suggests that the House intended to keep the number of judges at four. On the other, the Senate report that accompanied the bill contained no explanation for the elimination of Gilbert's seat. The Republicans held a majority in both houses of Congress, so the Senate's insistence on this provision was apparently not a partisan political gambit to keep a political appointment out of the incoming Hoover's hands. Nevertheless, Congress's action exposed its complete lack of appreciation for the growing burdens on the sitting judges: the court's caseload had already more than doubled since 1920.^[4]

The day after Congress passed this law, Coolidge announced a number of "midnight" judicial appointments, including that of Curtis D. Wilbur for the new Ninth Circuit seat. Wilbur, the outgoing Coolidge's secretary of the navy, fell victim to the political uncertainty occasioned by the transition between the two Republican administrations. Word leaked out in mid-January of 1929 that Hoover intended not to retain

any Californians for his cabinet, which some observers interpreted as a slap at Wilbur. The press speculated that Hoover did not want to overrepresent California in the new government. Wilbur's nomination to the Ninth Circuit lapsed when the Senate announced that it would take no action on most of the judges Coolidge had sent to Capitol Hill. Hoover gave no immediate indication of whether he would resubmit the Coolidge nominees. In the meantime, Wilbur announced his intention to practice law in San Francisco. No sooner had he opened his office, however, than Hoover renominated and the Senate confirmed him for the Ninth Circuit.^[5]

Curtis Dwight Wilbur's long career in public life was similar in some respects to the pre-appointment backgrounds of his predecessors. Like McKenna, he had held a Cabinet post; like Ross and Hunt, he had served as a state judge. Born in Boonesborough (later shortened to Boone), Iowa, on May 10, 1867, Wilbur came from a family with a strong pioneer streak. Wilbur's grandfather was an Andrew Jackson Democrat, but his six sons were Lincoln Republicans, a party affiliation shared by two prominent grandsons, Curtis and Ray. Curtis Wilbur earned his bachelor's degree from the United States Naval Academy in 1888, but he left the navy soon thereafter, fearing that the paucity of available officer positions would stymie his career. Wilbur moved to Riverside, California, where his parents had relocated during his stint at the academy. He taught school for two years while studying law at night. After gaining admittance to the California bar in 1890, he began practicing law in Los Angeles.^[6] During the next twenty-eight years Wilbur held a number of county and state posts, including chief deputy district attorney of Los Angeles County, county superior court judge, and finally, in 1918, associate justice of the California Supreme Court. Wilbur ascended to the chief justiceship of the California Supreme Court in 1922 but resigned in 1924 when Coolidge named him secretary of the navy.^[7]

Wilbur's service in Coolidge's Cabinet came at a troubled time. In addition to the Teapot Dome and Elk Hills oil reserve scandals that rocked the Harding administration and led to the resignation of Secretary of the Navy Edwin Denby, Wilbur had to confront the international problems associated with post-war demilitarization. Under Denby, the United States had agreed to the 1922 Washington Treaty, which set basic limits on the naval forces of the United States, Great Britain, Japan, and Germany. Wilbur assumed the responsibility for seeing that the United States Navy both abided by and built up to the limits guaranteed in the treaty. Given the pacifism sweeping the country in the 1920s and the

attendant calls for naval demobilization, Wilbur faced a great challenge in balancing competing forces to ensure that the navy remained strong. Secretary Wilbur appreciated the importance of naval aviation and submarine warfare, and he accurately perceived the dangers posed by Imperial Japan and international communism. These views placed him in the mainstream of the Republican party.^[8]

The Republicans' long run of success in presidential politics had translated into domination of the federal judiciary as a whole and the Ninth Circuit in particular. Within two years of Wilbur's appointment, this supremacy swiftly ended when all three of his original colleagues—Gilbert, Dietrich, and Rudkin—died: Dietrich on October 2, 1930; Gilbert on April 27, 1931; and Rudkin on May 3, 1931. As the judge with the most seniority on the court, Wilbur essentially succeeded Gilbert, whose death had ended the era of the Evarts Act judges appointed by President Harrison in 1892. Bilbert's tenure—thirty-nine years of active service, thirty-five of them as the senior Ninth Circuit judge—stands as the longest in the Ninth Circuit's history, and quite possibly the longest in the history of all the federal circuit courts of appeals. His career on the court spanned a period of significant social and economic change, to which his opinions contributed greatly. It was perhaps fitting that he lived to see Stanford University's most famous alumnus, Herbert Hoover, occupy the White House, for he had written the Ninth Circuit's opinion that saved the university from bankruptcy in 1895. Nor was that alone among his judicial contributions to western development. Gilbert's Ninth Circuit decisions covered virtually every facet of social and economic enterprise, from immigration and natural resource extraction to issues related to World War I and Prohibition. A man with a "passion for inconspicuousness," he spent his adult life in Portland out of the public spotlight.^[9] Although the influence of Gilbert's judicial opinions affected the lives of people throughout the West, few knew his name.

Wilbur's de facto replacement of Gilbert as senior judge occurred when Wilbur himself was still learning the job of circuit judge. Wilbur had the least experience of any Ninth Circuit judge ever to assume this post, which involved the administration of the court and participation in the Judicial Conference of Senior Judges, a body created in 1922 to increase administrative efficiency in the United States court system.^[10] Wilbur's assumption of this responsibility and honor so early in his tenure as circuit judge reflected the enormous disarray into which the court had fallen. The new senior judge faced the formidable task of

administering the court during the great social tumult brought on by the Depression. His ideological opposition to Roosevelt and the New Deal made the challenge all the greater. After a wave of Roosevelt-appointed Democrats joined him on the Ninth Circuit, Wilbur became the lone Republican. Only one Democratic judge had served on the court in its forty-year history, Erskine Ross. By the 1930s the political representation on the court would be reversed. Attempts to replace the Old Guard of Gilber, Ross, and Morrow with long-serving Republicans had failed. The three Republican administrations of the 1920s and early 1930s had seven opportunities to appoint judges, but their only Ninth Circuit appointee who held office for any significant length of time was Curtis Wilbur.^[11]