Appellate Jurist’s Elfin Ways Mask Solid Leadership

He is not the sort of judge one would expect to be chief of the largest federal appeals court in the nation: a diminutive elf of a man whose judgments tend to be pronounced with a sly grin and a twinkle in the eye, whose outside hours are more often spent spading his garden or fussing over law clerks’ offspring than sharing cocktails with the judicial elite.

His hair, even in formal court photographs, has always had a way of finding its own path. His last State of the Circuit address, delivered before hundreds of attorneys and judges, moved from caseload statistics to an affectionate tribute to the high school sweetheart he married in Belt, Mont.

Yet James R. Browning, 69, the homespun jurist who stepped down this month after 12 years as chief judge of the U.S. 9th Circuit Court of Appeals, has presided over a virtual revolution in court administration.

During his tenure, the sprawling appeals court that oversees federal justice in nine Western states and two Pacific territories has grown from nine judges to a 28-judge tribunal that manages more than 5,500 appeals a year--nearly twice the size of any other circuit in the country.

‘Law of the West’

Bucking two successive U.S. Supreme Court chief justices who have sought to split the circuit into smaller geographic segments, Browning has kept intact his ideal of a single court overseeing the “law of the West.” He has presided over a series of judicial innovations, ranging from decentralized staffing to fundamental changes in the way the court conducts its deliberations, that have made the 9th Circuit a model for other courts throughout the country.

By keeping the 9th Circuit intact against most odds, Browning has done much to preserve the nation’s three-tiered federal court system, say his colleagues on the bench and a variety of legal scholars.

Without his work, they say, there almost inevitably would have been a proliferation of circuit courts and more demands for a new intermediate appellate court between them and the Supreme Court--contributing to instability and unpredictability in the law and longer delays in the legal process.

“I think Judge Browning saved the 9th Circuit. It probably wouldn’t exist if it weren’t for him, and because of Judge Browning, we have the model on which the federal courts of the future will be built,” said Judge Stephen Reinhardt, one of Browning’s liberal colleagues on the court. “With his mild, quiet stubbornness--and he is quite stubborn, as well as charming and mild--he just stood firm.”

Sense of Collegiality

The conventional wisdom had always been that federal appeals courts ought not to expand beyond nine judges--preferably chambered under a single roof--lest their sense of collegiality and the integrity of their decision-making suffer through the accommodation of too many judicial temperaments.

Explosive population growth throughout the West in the 1960s and 1970s quickly put these nice notions--Browning dismisses them as “habits of thought”--to rest. Even with more than 20 judges in the early 1980s, the 9th Circuit was taking more than 17 months to process the typical appeal--longer than any court in the country.

The court’s judicial record was not much better. Reversed in 27 of 28 of its decisions reviewed by the U.S. Supreme Court in 1984, the 9th Circuit and its predominantly liberal appointees were compared in news accounts to the 1961 Philadelphia Phillies baseball team, who lost a then-record 23 games in a row.

By then, Browning was in his 23rd year on the court and his eighth year as chief judge. Gradually, the statistics started changing.

Case-processing times were cut by several months. The number of cases each judge handled jumped 27% in one year. Partly due to coincidence, partly due to a growing number of Republican appointees--who now make up about half the judges on the court--the circuit’s reversal rate was down to 47% in 1987--third lowest among the nation’s 13 federal appeals courts.

Quiet Persuasion

Much of the progress in court administration could be tracked to the soft-spoken, wisecracking chief judge, who quietly persuaded his colleagues to implement a variety of reforms that had been virtually unheard of in the past.

Judges ensconced in 13 cities ranging from Honolulu to Boise began communicating by electronic mail, speeding the exchange of opinions and memoranda and hastening decisions. New bankruptcy appellate panels were created to ease the workload. A system was set up so that cases raising similar issues were directed to the same panel of judges to prevent conflicts and overlaps. The number of cases decided without oral argument was substantially increased.

More problematic was how to ensure that a consistent body of law was emerging, one that lawyers and judges throughout the West could rely on for legal precedent, since only a small fraction of cases ever go beyond the circuit to the Supreme Court.

Federal appeals courts traditionally rely on panels of three judges to decide cases, convening all of the judges of the court in en banc hearings only on cases of special importance or to resolve conflicts in decisions by different panels.

But en banc hearings present a special problem in larger courts. The old 5th Circuit, which originally stretched from Texas to Florida, reached a roster of 25 judges and convened precisely one en banc hearing--a nightmare that reportedly spanned more than four hours--before the judges threw up their hands and petitioned Congress in 1980 to split into what are now the 5th and 11th circuits.

Lobbied Congress

Browning was one of those who successfully lobbied Congress in 1978 for authorization to begin holding limited en banc hearings--panels of 11 judges which convene to determine the final law of the circuit, in the place of all 28 judges.

Many judges were initially opposed to the idea that the ultimate law of the circuit could be pronounced by fewer than one-quarter of its active judges. But there is evidence that the limited en banc process--in use nowhere in the country but the 9th Circuit--is working.

In the decade since it began, limited en banc panels have been convened about eight times a year, most recently, in cases as technical as deciding how to define the court’s jurisdiction in state court lawsuits and as emotionally charged as the dispute between deposed Philippine President Ferdinand E. Marcos and the new government of President Corazon Aquino. But not once have the judges exercised their option to convene the full court to appeal a ruling of a limited en banc panel.

Not all of the innovations were Browning’s idea. But judges and academics who study the court say it was Browning who was able to present what were often controversial proposals and see them adopted not by fiat--because the chief judge has no real power over his colleagues--but by consensus.

“The thing that marks his regime most significantly from the point of view of the judges is he runs a happy court,” said Judge Alfred T. Goodwin of Pasadena, who took over as the new chief judge on June 15. “I guess he has the art of making people who disagree on professional legal questions behave in a way that’s impersonal, professional and collegial.”

Role of Peacemaker

Many of the judges interviewed--some of whom preferred not to be quoted by name--said Browning has played the role of peacemaker on the court.

In an era of increasingly sharp philosophical divisions, Browning has been quick to privately remonstrate judges whose rhetoric becomes too pointed or personal.

“I always felt his contribution mainly in the fact that he was able to keep us reasonably united and not inclined to slip into bitter factionalism,” said Judge Joseph T. Sneed, one of the court’s leading conservatives who recently took senior status.

“He’s a liberal, he’ll vote for the liberal bloc, that’s understood. But conservatives like myself were reasonably comfortable because at least we could talk to him. And he did not in any way exclude us from the counsels of the court simply on the grounds that we did not share his faith,” Sneed said.

Indeed, many judges have sensed that Browning, a classic liberal when he was appointed to the court by President John F. Kennedy in 1961, has become less of a doctrinal leader on the court in his zeal to promote administrative harmony.

Graduated First in Class

The son of a blacksmith and automobile dealer in tiny Belt, Mont., Browning graduated first in his class from Montana University School of Law in 1941. “The whole law school, I think, had 90 people in it. It was, however, I think, a very good law school. I would think that, but I think it’s objectively true that it was.”

From there, he went on to work in the antitrust section of the U.S. Justice Department, eventually becoming executive assistant to the attorney general and playing a key role in filing the government’s anti-segregation brief in the historic Brown vs. Board of Education case. Browning went on to become Clerk of the Supreme Court in 1958.

His years of experience in the field of antitrust law led him to produce some of the 9th Circuit’s most important decisions upholding vigorous enforcement of antitrust laws.

His decision in Brubaker vs. Dickson in 1962 was the first at the appeals level to set aside a criminal conviction because of the ineffectiveness of defense counsel. He has also written important opinions in the areas of public access to court proceedings and a landmark 1979 ruling that the continuous residence requirement for aliens seeking citizenship does not prohibit brief departures from the country.

But Browning admitted that his dissents have become “very rare” in the years since he ascended to the post of chief judge. Several judges said he now often prefers to issue many of the opinions he authors as unsigned, per curiam decisions.

Working in Harmony

“A chief judge tends to take a neutral point of view,” he admitted. “I have not cast a vote one way or another to keep the peace, but this 12 years has convinced me that the court can do its best work if it works in harmony, and I will continue to work for that, no matter what. There isn’t any position or any issue that seems to me of comparable importance.”

“Maybe,” he added, “it’s also just a factor of having been on the bench longer. I think it tends to bring you more to a position in which you see there is ground upon which everybody really can walk, and the extremes become less interesting, or necessary.”

Arthur Hellman, a University of Pittsburgh law professor who is heading a study of innovations in the circuit, said Browning’s low-key style has probably played a major role in his work as an administrator.

“I think a large part of his success as an administrator and encouraging this atmosphere of innovation and experimentation . . . comes from the fact that he is not and has not been perceived as an ideologue,” Hellman said.

Low-key style, yes, his colleagues say, but also persistence. Browning has had a way of asking for a lot more than the other judges are willing to go along with, with the expectation that if they do not buy it this year, they might go along with it next year--or the year after.

Rebuffed Again

Just this month, he was rebuffed yet again on a proposal to begin having panels of the court specialize in certain kinds of cases to increase judicial economy, a proposal Browning has fielded unsuccessfully for at least the last two years. “You have to be persistent, you know,” he said with the smile that lawyer after lawyer has decribed as impish.

Said Sneed: “One of his favorite statements always when we had to make a change to accommodate our growth was, ‘Well, let’s experiment.’ We all knew that didn’t mean what it said, it meant, ‘Let’s do it.’ ”

Not that the court does not have its critics. A survey last year of trial court judges and lawyers in the circuit showed that while most were happy with the appeals court’s overall operations, a majority said there is a problem with inconsistency in the court’s decisions.

Several lawyers echoed that concern privately in interviews, complaining that many of the court’s decisions, particularly in immigration law and civil rights, conflict with one another.

One who would speak for attribution, Los Angeles civil rights lawyer Stephen Yagman, said Browning should have taken stronger steps to force panels of judges to adhere strictly to precedents set by other panels.

Hallmark of Stewardship

“I think the hallmark of James Browning’s stewardship of the 9th Circuit is that it was more important to build a consensus than to do anything else, and consequently various reforms that could have been undertaken to make the court both more efficient and to make its decisions among the different panels more consistent and harmonious with one another were not made,” Yagman said.

Many lawyers and judges said it appears clear that Goodwin will take more of a hands-off approach to running the court than has Browning, if for no other reason than that he will remain sitting in Pasadena, hundreds of miles from the court’s headquarters in San Francisco. Goodwin himself said there will be “not much changing, I would hope.”

What will be different, most agree--although Browning has no plans to retire or even to take senior status--is the special personal touch he has brought to an office that has historically been viewed as remote.

Although Browning and his wife, Marie Rose, live now in a comfortable house in Mill Valley, Calif., his friends say he has never lost his Montana roots.

Shuts Office Early

Donald Burris, one of Browning’s law clerks in 1969 and now a Los Angeles trial lawyer, recalled one day when the judge shut down his office in order to visit Burris’ wife and their newborn son in the hospital.

Burris was shocked when his boss walked in. “But he just said, ‘I closed down the court a little early. You know, it’s St. Patrick’s Day, and your son was born.’ ”

“He doesn’t fit your preconception about a judge,” Burris said. “If you’ve never met a judge in your life, particularly a judge on the federal court of appeals, you would assume that the judge is going to be this monumental presence in robes behind the bench. And then you meet this cherubic, warm, friendly and sensitive guy. And he is more than happy--in fact wants--to discuss whatever your thoughts (as a first-year law school graduate) are with regard to cases.

“I clerked for this man 19 years ago,” Burris said, “and he still stands out as the most profound influence on my life.”