Appointment to the Ninth Circuit Court of Appeals


I didn't tell you this, but when Carter—now this is almost five years later—Jimmy Carter becomes president, and he set up a system of commissions, like he had one for the Northern Ninth Circuit, one for the Southern Ninth Circuit, and he asked very prominent, well-known people to be members of the commission. They were out on a talent search for people to be supported as federal judges, both district judges and court of appeals judges. People were breaking their necks and leaning over backwards to get called by this commission. By that time, I had my own parochial feeling about the district court. I said, "I'm damned tired of moving around from one thing to the other. I don't want to be a circuit judge." I used to explain to people that our function as district judges was to try the cases and get a solution to them. The function of the court of appeals was to reverse all of that. [Laughter]

Charlotte called Coblentz. I was in my chambers up in the Federal Building, and the time for submitting these applications it was drawing to a close. I think they had to be received—I think it was the next day. So without telling me a word, she had him come up to my chambers. He brought a copy of the application with him, and we talked about it. He said, "I'm supposed to call her if you don't behave yourself." I said, "I'll get her on the phone

for you." She said, "Are we going to go through this again?" [Laughter] I said, "No, I'm not going to go through it again." She said, "You know what I mean."

She had talked to me about it, and she had learned through Judge Choy—he's a Hawaii judge, Herbert Choy. I guess that's Chinese. Anyhow, Charlotte and Mrs. Choy had become pretty good friends. So we were over on the Ninth Circuit; they had the Judicial Conference at—I think must have been at Kauai. She and Mrs. Choy had gotten to chatting, and she asked her, "Are you sitting next week?" I was supposed to sit the next week back in San Francisco, and Mrs. Choy said, "No, Herbert sat there about three weeks ago, and he won't be going back right away." This was in June. "He'll be off in July and probably off in August, and he'll probably take an assignment in September." So Charlotte said, "You mean you have those times when he's not sitting?" She said, "Oh, yes, oh, yes, it depends on the schedule. The beauty about it is the computers give you the schedule for a year in advance, and you know what you're going to do, and you can't do that in the district court." She said, "I want to talk to you." [Laughter]

We got into all that hassle, and as soon as she flew back, she said, "Putting it to you honestly, you've always expended a great deal of energy in your trials, like you did when you were prosecuting cases, and it's about time that you began to think of somebody other than yourself." I said, "I am thinking of people. I'm thinking about you, for example. You wouldn't want me hanging around the house a lot, would you?" [Laughter] She said, "No, but I could put you to work."

So she talked about it, and I'd just sit there, "umhm, umhm." A month and a half later, one afternoon Coblentz pops up in my chambers, and he has a copy of this application. He said, "You've got to fill it out now, I'm telling you. Your wife is very, very unhappy, she really wants to get a chance to see you more." I said, "I see her every night." You cannot predict when you're going to be preoccupied the way you can in the court of appeals. I could see the logic of that. By that time, we were putting on some years, and she wanted to do some things that were not compatible with having a jury that's going to last, they say, five days, and two weeks later you're still getting the opening statements or something. So Coblentz came up and he brought the papers, and I said, "How are you going to get it there tomorrow?" He said, "We are going to take this over to the post office and it's going to go by next day mail." So, he did, he sent it.

Eventually they came up and interviewed me, and I was one of those recommended. I was confirmed.