Judges and Judiciary
Jan. 9, 2025
Jimmy Carter diversified federal courts in single term, left lasting mark
Carter, who died Dec. 29 at the age of 100 and will have funeral services on Thursday, never picked a U.S. Supreme Court justice but appointed more judges - 262 - to the federal bench than any president in a single term.
When President Jimmy Carter took office in 1977, the federal bench was dominated by white men, and the 9th U.S. Circuit Court of Appeals, with 11 active members and two vacancies, had a clear-cut majority of judges appointed by Republican presidents.
Carter, who died Dec. 29 at the age of 100 and will have funeral services on Thursday, never picked a U.S. Supreme Court justice but appointed more judges - 262 - to the federal bench than any president in a single term.
At a time when women were still struggling to gain a foothold in the law, Carter appointed 55 members of minority groups and 40 women, including three judges on the 9th U.S. Circuit Court of Appeals as well as the first Latino, Judge Arthur L. Alarcon, and the first Black judges, Judges J. Jerome Farris and Cecil F. Poole.
One of those appointees was Senior 9th Circuit Judge Mary M. Schroeder, who joined the court along with three other Carter appointees on the same day in 1979 including 9th Circuit Judge Betty Binns Fletcher. She later became the court's first female chief judge in 2000.
"Jimmy Carter changed the federal judiciary forever," Schroeder said Wednesday in a phone interview. "He made the decision to make the courts look more like America. There was no going back after that."
Many of Carter's judicial choices, especially long-serving jurists like 9th Circuit Judge Harry Pregerson and Stephen R. Reinhardt, advocated an unapologetic liberalism that sometimes ran headlong into an increasingly conservative Supreme Court.
"They were confident and had the courage of their convictions," said Benjamin S. Feuer, chair of the Complex Appellate Litigation Group in San Francisco, of Carter's "extremely liberal" appointees. "They issued opinions no matter what the public and Congress thought."
Carter's influence was boosted by legislation passed by Congress in 1978 that added judges to the federal judiciary, including 10 on the 9th Circuit. The president filled the two vacancies he inherited as well as the new judgeships, transforming the conservative appellate court into a very liberal one.
He named 15 judges to the 9th Circuit - who along with Chief Judge James R. Browning, an appointee of President John F. Kennedy, outnumbered the 7 remaining Republican appointees by the time his term ended in 1981 after his defeat by President Ronald Reagan.
Another bill adding five judges to the 9th Circuit allowed Reagan appointees to trim the margin. Republican appointees briefly gained a majority on the court in the 1990s, but that didn't last long, as President Bill Clinton restored its Democratic majority by 1998 - which the 9th Circuit still has today, although the margin is narrow.
Arthur D. Hellman, a professor emeritus at the University of Pittsburgh School of Law, said that Carter's appointees established the 9th Circuit's reputation, both among its supporters and critics, as a liberal court that so annoyed Republicans that they have often advocated for it to be divided.
"The effect of Carter's appointments on the 9th Circuit were far more long-lived than on other circuits," he said in a phone interview. "He's responsible for the modern 9th Circuit."
"This liberalism manifested itself particularly in three areas of federal law - immigration, environmental law, and habeas corpus for state prisoners challenging their criminal convictions," Hellman added.
UC Berkeley School of Law Dean Erwin Chemerinsky said in an email that Carter "used a merit selection process for Court of Appeals judges that had not been used before or since. It really mattered.
"Carter picked nine women for court of appeals judgeships," he added. "Before that, in all of American history, there has been two."
9th Circuit Judge Shirley M. Hufstedler, an appointee of President Lyndon Baines Johnson who was the court's first woman judge, left after Schroeder and Fletcher's first court meeting to become the country's first Secretary of Education - with the promise that Carter would appoint her as a Supreme Court justice if a vacancy came open, Schroeder said.
Instead, Reagan picked Arizona Court of Appeals Justice Sandra Day O'Connor, who had replaced Schroeder on the state court after she was appointed to the 9th Circuit, as the Supreme Court's first woman justice in 1981.
While more women were becoming lawyers by the 1970s, their presence was minimal on the federal bench, Schroeder said.
Asked if this change would have happened inevitably, Schroeder disagreed, ticking off a list of California district judges appointed by the late president.
"I think this was very much Jimmy Carter's doing," she said.
Craig Anderson
craig_anderson@dailyjournal.com
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