1. Its last new member, William W. Morrow, joined the court in 1897. The only circuit to approach this longevity record was the Fifth Circuit, which gained a new member in 1899. ( see Committee on the Judiciary, "Legislative History of the United States Circuit Courts of Appeals and the Judges Who Served During the Period 1801 Through May 1972," Senate Comm. on Judiciary, 92d Cong., 2d Sess. [1972, charts on each circuit; hereinafter Senate Judiciary Committee, "Legislative History"]).

2. Fortunately, the building emerged relatively undamaged from these disasters, although enough latent damage apparently occurred to render the courthouse uninhabitable after the 1989 Loma Prieta earthquake. For more on the history of this building, see Farneth, " 'A Post Office That's a Palace': U.S. Court of Appeals and Post Office Building," 1 West. Legal Hist. 57 (1988).

3. 1897 Rep. Att'y Gen. at 3; id. for 1913, at 75. A review of the court's docket books for these years reveals that the clerk officially recorded 72 appeals in 1897, rather than 71 as the attorney general reported ( see Ninth Circuit Statistical Study, Comparison Table of Docket Books and Attorney General Reports, on file with the Ninth Circuit Library, San Francisco, California).

4. Act of Mar. 3, 1911, ch. 231, § 289, 36 Stat. 1087, 1167. For more on the 1930s reforms that created more Ninth Circuit judgeships, see infra pp. 221-227.

5. Act of June 18, 1910, ch. 309, 36 Stat. 539, 539-40. Heretofore, the circuit courts reviewed ICC orders ( id. ).

6. Act of June 18, 1910, 36 Stat. at 541. In President Taft's nomination message to the Senate, he nominated Hunt for the Ninth Circuit and designated him to serve for three years in the Commerce Court ( see 42 J. of Senate Exec. Proceedings 55 (1942), available at National Archives, Washington, D.C.). This nomination message appears to conflict with the statutory language, for the statute vests such assigning power in the chief justice. The Commerce Court never had a great deal of support among bench and bar, and it had been created by narrow majorities in both the House and the Senate ( see generally F. Frankfurter and J. Landis, The Business of the Supreme Court 153-74 [1928]). Senate Judiciary Committee, "Legislative History," at 27; see also Act of Oct. 22, 1913, ch. 32, 38 Stat. 208, 219 (reauthorizing assignment under Act of June 18, 1910, ch. 309, § 1, 36 Stat. 539, 540).

7. See generally File of William H. Hunt, Department of Justice Appointment Files, Ninth Circuit, 1855-1901, Tray 2, RG 60, National Archives, Washington, D.C. Judges of the United States 240-41 (2d ed. 1983).

8. *William H. Hunt to Erskine M. Ross, July 7, 1915, Scrapbook of Erskine M. Ross, deposited at the Los Angeles County Law Library (hereinafter Ross Scrapbook). The only other judges whose correspondence Ross memori-

alized in this way were Chief Justice William Howard Taft and Justice James C. McReynolds. Except for incidental references in newspaper clippings, a reader of Ross's scrapbook would not know that he served for nearly thirty years with William B. Gilbert and William W. Morrow.

9. Act of Mar. 3, 1911, ch. 231, § 260, 36 Stat. 1087, 1161.

10. See Senator Thomas J. Walsh to Attorney General James C. McReynolds, May 29, 1913, File of Hon. William Kent, House of Representatives, Re: Federal Judgeships in California, Apr. 12, 1913, Judges, Ninth Circuit Court of Appeals, A-H, Department of Justice Records, RG 60, National Archives, Washington, D.C. (hereinafter Kent File). William Kent to Woodrow Wilson, Apr. 9, 1913, Kent File. President Franklin D. Roosevelt appointed Denman in 1935. See infra Chapter Eight. For the source of the rumors, see Walsh to McReynolds, May 29, 1913, Kent File. See also Macdonald, "Erskine Mayo Ross: Courageous Jurist and Generous Benefactor," 33 A.B.A. J. 1172, 1173 (1947). Unidentified newspaper clipping, Ross Scrapbook.

11. See G. Cosgrave, Early California Justice: The History of the United States District Court for the Southern District of California, 1849-1944 , at 71 (1948). When Ross became physically disabled is unknown. 57 Cong. Rec. *380-81 (1919). Act of Feb. 25, 1919, ch. 29, § 6, 40 Stat. 1156, *1157, *1158.

12. See San Francisco Examiner , Jan. 8, 1919, at 1, col. 2. On Morrow's friendship with Johnson, see Hiram Johnson to Sons, Mar. 26, 1922, Hiram Johnson Papers, Bancroft Library, University of California at Berkeley (hereinafter Johnson Papers). On the marriage of his daughter to Colonel Roosevelt, see San Francisco Examiner , Dec. 28, 1927, at 1, col. 3. San Francisco Examiner , Apr. 26, 1920, at *2, col. 5. San Francisco Examiner , May 26, 1920, at 1, col. 4. Gilbert and Ross did not share Morrow's view of what statements a judge was permitted to make in public. Both were scrupulous in avoiding public discussions of partisan politics. In this area Morrow departed sharply from the standards set by his longtime predecessor as district judge in northern California, Ogden Hoffman ( see C. Fritz, Federal Justice in California: The Court of Ogden Hoffman, 1851-1891 , at 38 [1991]).

13. San Francisco Examiner , Oct. 5, 1921, at 13, col. 13. San Francisco Examiner , Oct. 7, 1921, at 8, col. 3. San Francisco Chronicle , Oct. 6, 1921, at *7, col. 2. San Francisco Examiner , Oct. 10, 1921, at *3, col. 4.

14. Act of Feb. 25, 1919, § 6, 40 Stat. 1156, 1157. San Francisco Chronicle , Jan. 6, 1923, at *5, col. 1. A lexis search reveals that Morrow sat on the panel of ninety-nine appeals in published cases and wrote thirty-four opinions, including one dissent, during this period ( San Francisco Examiner , Dec. 28, 1927, at 1, col. 3). McDonough v. United States , 299 F. 30 (9th Cir. 1924). McDonough v. United States , 1 F.2d 147, *149 (9th Cir. 1924). His wife, Margaret, died in 1926 after sixty-one years of marriage, and in 1928 Morrow surprised the community by wedding his nurse, Julia Neill, aged fifty-one. Morrow was then eighty-four. What the San Francisco Chronicle had written in 1921 seemed equally true seven years later: "Unlike the high candle-power lamp which burns brightly, fiercely, then suddenly goes out, his life may be likened to the wax taper sheltered from the wind, never flickering nor flaring up, but burning slowly and steadily until finally consumed." Morrow's candle finally expired on July 14,

1929 ( San Francisco Chronicle , Oct. 6, 1921, at 7, col. 2). On his death see San Francisco Chronicle , July 25, 1929, at 13, col. 6; July 26, 1929, at 17, col. 8; July 26, 1929, at 28, col. 1.

15. "In Memoriam: Hon. Frank H. Rudkin," 52 F.2d xxiii (Sept. 14, 1931). Snippets of information on Rudkin appear in C. Sheldon, A Century of Judging: A Political History of the Washington Supreme Court (1988). Senator Miles Poindexter to Attorney General Harry M. Daugherty, Jan. 4, 1923, File of Frank H. Rudkin, Judges, Ninth Circuit Court of Appeals, N-Z, Department of Justice General Records, RG 60, National Archives, Washington, D.C. (hereinafter Rudkin Appointment File). Senator Wesley L. Jones to Attorney General H. M. Daugherty, Dec. 30, 1922, Rudkin Appointment File. *Charles S. Albert to Colonel Guy D. Goff, Assistant to Attorney General, Nov. 17, 1921, Rudkin Appointment File.

16. "In Memoriam," 52 F.2d at *xxix, xxx.

17. See , e.g., Carney v. United States , 295 F. 606 (9th Cir. 1924); Rossi v. United States , 49 F.2d 1 (9th Cir. 1931).

18. See newspaper clippings in Ross Scrapbook. *Gilbert to Denman, Jan. 3, 1925, William Denman Papers, Bancroft Library, University of California, Berkeley.

19. William W. Morrow to Attorney General Harlan F. Stone, Jan. 3, 1925, File of Erskine M. Ross, Confidential Regarding His Retirement, Judges, Ninth Circuit Court of Appeals, N-Z, Department of Justice General Records, RG 60, National Archives, Washington, D.C. (hereinafter Ross Retirement File).

20. *Oscar Lawler to William W. Morrow, Jan. 9, 1925, Ross Retirement File. *Harlan F. Stone to Frank F. Flint, Jan. 30, 1925, Ross Retirement File.

21. Erskine M. Ross to President Calvin Coolidge, Mar. 16, 1925, Ross Retirement File. By this time Ross had heard rumors that Coolidge was considering removing him under the "incapacitated judge" provision of the 1919 act. The last paragraph of this letter to the president suggests that it was fear of such "highly reprehensible" treatment that induced him to resign. He said, "No suggestion that my retirement was desired was ever made to me by any one," which, if true, would cast great doubt on the execution of the Morrow-Gilbert plan.

22. *President Calvin Coolidge to Erskine Mayo Ross, Apr. 1, 1925, Ross Retirement File.

23. President Coolidge's letter to Ross left open the possibility that the retiring judge might serve in senior status capacity (Coolidge to Ross, Mar. 30, 1925, Ross Retirement File). Given that President Coolidge wrote two letters to Ross and invited the judge to share the other, more personal message with the press, this letter of March 30 was very likely a form letter. Senior Judge Gilbert apparently never called on Ross to serve as a senior status judge ( see San Francisco Chronicle , Apr. 3, 1925, at 24, col. 7).

24. *William H. Hunt to Erskine M. Ross, Mar. 19, 1925, Ross Scrapbook. For more on the public reaction to Ross's retirement, see unidentified newspaper clippings, Ross Scrapbook. See San Francisco Chronicle , Dec. 11, 1928, at 17, col. 3; San Francisco Examiner , Dec. 11, 1928, at 18, col. 1; San Francisco Examiner , Dec. 13, 1928, at 7, col. 6.

25. William J. Donovan, ''Memorandum for the Attorney General,'' April 25, 1925, at *3, Circuit Judge—Ninth Circuit General File, Judges, Ninth Circuit Court of Appeals, A-H, Department of Justice General Records, RG 60, National Archives, Washington, D.C. (hereinafter Donovan Memorandum). Donovan makes no direct statement, but his view can be inferred from his remark, "There are no other endorsements of Mr. Mackintosh" (Donovan Memorandum, at 4). He made a similar remark about McEnery's file ( id. ).

26. Donovan, "Memorandum," supra note 25, at *5, *6.

27. Donovan, "Memorandum," supra note 25, at *8, *Appendix. In its official records, the Senate Judiciary Committee incorrectly listed Dietrich's date of birth as January 23, 1865 ( see Senate Judiciary Committee, "Legislative History," at 174).

28. See Papers of Wallace McCamant, Special Collections, University of Oregon Library, Eugene, Oregon (hereinafter McCamant Papers).

29. George H. Ellis to Wallace McCamant, July 22, 1920, McCamant Papers. See , e.g., Wallace McCamant to Governor Calvin Coolidge, Sept. 7, 1920; *McCamant to Coolidge, Nov. 5, 1920; McCamant to Coolidge, Nov. 13, 1920; McCamant to Coolidge, Nov. 17, 1923 (referring to a letter from Coolidge of Nov. 12, 1923), McCamant Papers. *Attorney General Harry M. Daugherty to Wallace McCamant, Dec. 8, 1923, McCamant Papers. When Daugherty proposed that McCamant serve as assistant attorney general as a stepping-stone to a judgeship, McCamant at first expressed his reluctant acceptance; he retracted a few days later, but feared that he was irrevocably damaging his judicial prospects (McCamant to Daugherty, Dec. 15, 1923; McCamant to Daugherty, Dec. 17, 1923). Daugherty laid these fears to rest, assuring McCamant that his refusal to accept an unwanted position "will not make any difference, for I would be glad to recommend you, with the President's consent, whether two additional judges are provided for the Ninth Circuit or there is a vacancy elsewhere in the meantime" (Daugherty to McCamant, Dec. 22, 1923, McCamant Papers).

30. *John Marshall, Assistant Attorney General, Memorandum for the Attorney General, May 25, 1925, File of Wallace McCamant, Confidential, Judges, Ninth Circuit Court of Appeals, I-M, Department of Justice General Records, RG 60, National Archives.

31. U.S. Const. art. II, § 2.41 Op. Att'y Gen. 463, 370 (1960); 33 Op. Att'y Gen. 20 (1921).

32. See McCamant to Charles W. Nibley, Oct. 23, 1923, McCamant Papers. In this letter McCamant explained the source of his conflict with Senator Hiram Johnson and requested Nibley's aid in talking to Senators Smoot and King about supporting McCamant's confirmation "in case the appointment should come to me." On March 23, 1925, McCamant wrote to Senator Robert N. Stanfield of Oregon, asking to be kept apprised of the "probable action of the Senate in case my name is sent in by the President" (McCamant to Senator Robert N. Stanfield, Mar. 23, 1925, McCamant Papers). "Nomination of Wallace McCamant," Hearings Before the Senate Comm. on the Judiciary, 69th Cong., 1st Sess. 1 (1926; hereinafter McCamant Hearing). See 67 Cong. Rec. 1503 (1926); New York Times , Jan. 6, 1926, at 11, col. 4.

33. New York Times , Jan. 13, 1926, at 14, col. 5. Clapper, "Portrait of a Federal Judge," 46 The New Republic , March 17, 1926, at 96. Johnson himself believed that this vote would guarantee McCamant's confirmation: "I had McCamant beaten very much to my surprise at the close of the executive session last Tuesday. The occasion was one where I got started on the right foot and quite outdid myself. After three hours the representatives of the administration found the only way in which they could prevent defeat was to refer the matter again to the judiciary committee, and by a vote of 43 to 33, against my protest, this was done. In the time now afforded them, those in power will whip into line the recalcitrant senators, and undoubtedly, McCamant will be confirmed" (Hiram Johnson to Sons, Jan. 16, 1926, Johnson Papers).

34. New York Times , Jan. 19, 1926, at 18, col. 1. Appearances by judicial candidates were not the norm during this period, and there is some documentary support for the view that McCamant could easily have chosen not to attend the hearing; see William H. Hunt to McCamant, Jan. 13, 1926, McCamant Papers: "It may be that you will think it wise to go to Washington." In this letter, Hunt again displayed his collegiality to his colleagues on the court. He added, "If you do, you must not let any feeling of duty to the Court interfere for I will sit with pleasure at any time that you might be sitting if here. I do not want you to be unjustly dealt with and if I can do anything to serve you, be assured it will be done with earnest attention and loyalty" ( id. )

35. See generally McCamant Hearing. Most of the material available from the National Archives relating to the committee's proceedings was printed in this hearing. Because of the readier availability of the printed hearing, citations have been made from it rather than from the original documents. Other cited materials may be found in the National Archives: File of Wallace McCamant, Nomination Papers of Ninth Circuit Judges, RG 46, National Archives, Washington D.C. (hereinafter McCamant Nomination File). See Senator Hiram Johnson to Senator A. B. Cummins, Chairman, Committee on the Judiciary, Dec. 10, 1925, McCamant Nomination File. McCamant Hearing, at 35-36, *37.

36. See McCamant Hearing, at 43-45. For the record, if McCamant delivered his speech as it was written, the objectionable reference was as follows: "By his recent appointment of a mountebank to the Federal Supreme Court Woodrow Wilson has demonstrated his utter unfitness to dispense judicial patronage" (Wallace McCamant, "The Republican Party and History," Lincoln Day Speech, 1916, at 12, McCamant Papers).

37. McCamant Hearing, at *48.

38. J. Abels, In the Time of Silent Cal 20-21 (1969); W. White, A Puritan in Babylon 177-217 (1938). McCamant had been a delegate to the Republican state conventions in 1892, 1894, 1896, 1898, and 1900. He had also been a delegate to the 1896 and 1900 Republican national conventions ( History of the Bench and Bar in Oregon 176 [1910]). McCamant Hearing, at *48.

39. McCamant quoted the prior statute as providing: "Every such delegate to a national convention to nominate candidates for President and Vice President shall subscribe an oath— . . . that he will as such officer and delegate to the best of his judgment and ability faithfully carry out the wishes of his political party,

as expressed by its voters at the time of his election." This law had been repealed in 1919. McCamant Hearing, at 48-49, *50.

40. See McCamant Hearing, at *51. This response showed some disingenuity. In his private correspondence McCamant left traces that he wanted both to oppose Johnson and to avoid a direct confrontation with allies of the California senator. His original platform contained the statement: "I am an admirer of Charles E. Hughes. For this and other reasons I am unwilling to vote for Hiram Johnson" (McCamant to C. E. Ingalls, Apr. 5, 1920, McCamant Papers). McCamant excised the offending reference when a friendly journalist wrote to him: "In reference to the Johnson matter,—I feel just as strongly about him as you do and he is the only candidate whom I am fighting in my paper. I detest him thoroly [ sic ]. Nevertheless, I think you are not only justified in failing to mention him, but I think you owe it to your friends to do nothing that might defeat your election. It is not probable tha[t] any candidate will be elected on the first ballot. Therefore, I would change your statement as I have indicated" (Ingalls to McCamant, Apr. 7, 1920, McCamant Papers).

41. McCamant Hearing, at *51, *56, *57, 59. McCamant was so certain that the 1920 campaign episode would become an issue in his confirmation that he started contacting potential affiants soon after he assumed his judicial post under the recess appointment ( see , e.g., McCamant to Hon. A. L. Leavitt, June 24, 1925, McCamant Papers).

42. McCamant Hearing, at 61.

43. McCamant Hearing, at 62.

44. That plank stated: "That when an Act, passed under the police power of the State, is held unconstitutional under the State Constitution, by the courts, the people, after an ample interval for deliberation, shall have an opportunity to vote on the question whether they desire the Act to become law, notwithstanding such decision" (R. Diamond, ed., Congressional Quarterly's Guide to U.S. Elections 47 [1975]).

45. McCamant Hearing, at *62-63. Johnson took no small satisfaction in the accomplishment. As he later wrote to his sons, "Yesterday, McCamant appeared to poor advantage, and I had the satisfaction, at least, of showing him up before the Senate Judiciary Committee" (Hiram Johnson to Sons, Jan. 30, 1926, Johnson Papers).

46. McCamant Hearing, at 77.

47. The hearing does not give the date of the telegrams ( see McCamant Hearing, at 77), but the National Archives records reveal that Gilbert sent his telegram on January 14 and Hunt and Morrow transmitted theirs on January 15, 1926 (McCamant Nomination File). See generally Evans, "A Work Sheet of Judicial Labor of Appellate Federal Courts," 1943 Wis. L. Rev. 313, 321. Campbell v. United States , 12 F.2d 873 (9th Cir. 1926). In this case, McCamant wrote also for Gilbert in affirming the conviction of the defendant for fraud. On appeal the defendant contended that the district judge had made one-sided instructions favoring the government. McCamant wrote that the evidence was so overwhelming as to warrant conviction in spite of the error. In dissent, Rudkin contended that the "constitutional guaranty [of a fair and impartial trial by jury]

is not satisfied by a partisan, one-sided charge to the jury" ( Campbell , 12 F.2d at 878 [Rudkin, J., dissenting]). McCamant Hearing, at 77.

48. See New York Times , Feb. 12, 1926, at 6, col. 2; id. , Feb. 17, 1926, at 5, col. 2. Coolidge even invited McCamant to lunch with him at the White House a few days after the hearing. Clapper, supra note 33, at 98. In a poll taken a few days before the vote the Senators who indicated their opposition to McCamant included Chairman Cummins and Senator Borah, Republicans, and Neely, Walsh, Reed, Overman, Ashurst, and Caraway, Democrats. In favor of McCamant were Senators Deneen, Goff, and Ernst, Republicans ( San Francisco Recorder , Mar. 12, 1926, at 1, col. 7). The official committee vote of ten to four was reported in the San Francisco Recorder , Mar. 17, 1926, at 1, col. 5, 67 Cong. Rec. 5796 (1926). See Senate Resolution, March 17, 1926, Wallace McCamant File, Appointment Papers, Judges, Ninth Circuit Court of Appeals, I-M, Department of Justice General Records, RG 60, National Archives (hereinafter McCamant Appointment File). San Francisco Recorder , Mar. 18, 1926, at 1, col. 6. *Hiram Johnson to Hiram Johnson, Jr., Mar. 14, 1926, Johnson Papers. *Senator Robert N. Stanfield to McCamant, Mar. 17, 1926, McCamant Papers.

49. Wallace McCamant to Calvin Coolidge, Apr. 19, 1926, McCamant Appointment File. Calvin Coolidge to Wallace McCamant, Apr. 24, 1926, McCamant Appointment File. The information on the recess appointments derives from a number of sources. For all appointments made up through May 1972, see Senate Judiciary Committee, "Legislative History." This document contains charts of each circuit and notes when a judge received a recess appointment. For recess-appointed judges after this date, see Congressional Research Service, "Recess Appointments by President Ford: Aug. 9, 1974-Jan. 20, 1977" (1984); Congressional Research Service, "Recess Appointments by President Carter: Jan. 20, 1977-Jan. 20, 1981" (1984); Congressional Research Service, "Recess Appointments by President Reagan: Jan. 20, 1981-July 5, 1984 (1984); Congressional Research Service, ''Recess Appointments by President Reagan: Oct. 12, 1984-Sept. 8, 1985 (1985; President Reagan made no recess appointments between July 5 and October 12, 1984); Congressional Research Service, ''Recess Appointments Made by President Reagan" (1988); Congressional Research Service, "Recess Appointments by President Bush" (1991). See generally Congressional Research Service, "Recess Appointments: Legal Overview" (1987).

50. 1924 Att'y Gen. Ann. Rep. 115; 1925 Att'y Gen. Ann. Rep. 133. Gilbert's average is given from 1926 to 1930. Evans places the average at 37.20 but counts 1929 as a year Hunt served, which is inaccurate. See Evans, supra note 47, at 324. Hunt took senior status on January 31, 1928, and left the court completely on November 30, 1928, to resume the practice of law. He died February 4, 1949, at the ripe age of ninety-one.

51. The evidence for this view is not entirely firm. It is based on snippets from some newspaper articles, most particularly one in the San Francisco Chronicle , Dec. 27, 1926, at 10, col. 4. In this article the paper noted that Coolidge had also refused to push for a bill that would have provided additional judges for the Northern and Southern Districts of California ( id. ).

52. *Attorney General to Calvin Coolidge, Dec. 22, 1926, File of Frank S. Dietrich, Judges, Ninth Circuit Court of Appeals, A-H, Department of Justice General Records, RG 60, National Archives, Washington, D.C. (hereinafter Dietrich Appointment File). *Senator Frank Gooding to President Calvin Coolidge, Apr. 1, 1926, Dietrich Appointment File. See also Edward J. Cannon to Attorney General William E. Mitchell, Apr. 22, 1930, Dietrich Appointment File.

53. Dietrich was confirmed on January 3, 1927, and took the oath of office two weeks later, on January 18, 1927. On Dietrich's background, see generally Judges of the United States 131 (2d ed. 1983); 33 National Cyclopedia of American Biography 195-96 (1947); "In Memoriam: Hon. Frank Sigel Dietrich," 42 F.2d xi (Nov. 5, 1930). E.g., Nixon v. United States , 36 F.2d 316, 317-18 (9th Cir. 1929, reversing a conviction for possessing liquor on ground of unreasonable search); American Surety Co. v. Jackson , 24 F.2d 768, 771 (9th Cir. 1928) (Dietrich, J., dissenting, arguing that the trial court had correctly dismissed action brought by surety against the receiver of a bank). For details of his death, see San Francisco Chronicle , Oct. 3, 1930, at 7, col. 1. Evans, supra note 47, at 324.