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Judge Thomas swears in former clerk to succeed him on 9th Circuit

When the Honorable Anthony D. Johnstone took the oath of office on May 5 for a seat on the Ninth Circuit Court of Appeals, it marked a momentous occasion for him — and also for the man swearing him in.
The day marked Judge Johnstone’s return to the Ninth Circuit, where he had been a law clerk in his first job after law school. Meanwhile, when Chief Judge Emeritus Sidney R. Thomas administered the oath to his one-time clerk, he transitioned to senior status, culminating his remarkable tenure as an active judge on the court. 
It was fitting that the ceremony took place in the Pope Room at the University of Montana’s Blewett School of Law – the school where Judge Thomas earned his J.D. in 1978 and where Judge Johnstone was a professor for the past decade. The Pope Room is named for the Honorable Walter L. Pope, a former UM School of Law professor and the first Montanan to serve as chief judge of the Ninth Circuit (1959).
“I am grateful for the warm welcome of my new colleagues on the court and throughout the circuit, and in particular the continued mentorship of Chief Judge Emeritus Thomas,” Judge Johnstone said. “As I begin the work of the court, Judge Thomas’ kindness and model of service to the circuit inspires me. Although I will miss being a full-time member of the community at the School of Law, it is a special honor to follow in the footsteps of its graduates, Judge Thomas and Judge Browning, and the first University of Montana law professor to serve on the court, Judge Pope.”
Judge Thomas noted that it was his second time swearing in a former clerk as a federal judge. The first was Magistrate Judge Steve Kim of the U.S. District Court for the Central District of California, who coincidentally clerked alongside Judge Johnstone in 1999-2000.
While he would have preferred if he could have been there in person for the investiture rather than conducting it virtually, it was gratifying to have his former clerk succeed him.
For years, Montana has enjoyed prominence in the Ninth Circuit despite being dwarfed in population by many of the circuit’s other states. The circuit’s courthouse in San Francisco is named after the Honorable James Browning of Montana, who served on the circuit for from 1961 until his death in 2012, including 12 years as chief judge. Judge Thomas strengthened that prominence, becoming the first judge on the circuit to  have his chambers in Montana. He said he is delighted that Judge Johnstone, whose chambers are in Missoula, is following his lead.
Judge Thomas leaves lasting legacy
To say Judge Johnstone is stepping into big shoes by filling Judge Thomas’ seat would be an understatement. Colleagues say Judge Thomas is universally respected not just in the Ninth Circuit but across the federal bench and that his career on the bench has been marked by a dedication to technological progress, congeniality, a passion for public outreach and a legendary work ethic. 
Ninth Circuit Chief Judge Mary H. Murguia, who succeeded Judge Thomas in that position in 2021, said that he has been a great resource for her in acclimating to the role.
“He is a mentor and an inspiration to me, and I believe his resolve and dedication inspire all the judges within our circuit, and all those around him,” Chief Judge Murguia said. “He consistently displays the highest ideals of our profession – integrity, temperance, collegiality and an unwavering commitment to justice.”
In a tribute to Judge Thomas presented during the Ninth Circuit’s 2022 Conference in Big Sky, Circuit Judge Morgan Christen of Anchorage, Alaska, said that Judge Thomas had earned an outsized reputation long before he became chief judge of the circuit in 2014. Shortly after his confirmation,  he volunteered to take on then Chief Judge Procter Ralph Hug’s biggest problem – a backlog created by 10 judicial vacancies that had opened in the circuit over the previous two years, which forced the postponement of over 600 cases and created a huge case backlog. Chief Judge Hug enlisted him for two committees to devise a strategy, Judge Christen said, and he ran with it, using data analytics to identify bottlenecks and dramatically improving court efficiency. 
Four years later Judge Thomas became the court’s en banc coordinator, and he became capital case coordinator soon after that. He has served in both capacities, both of which are critical to the operation of the court, for more than  20 years.
Judge Thomas also spearheaded using technology to increase public access to the courts, including digitally recording oral arguments beginning in 2003 and livestreaming oral arguments by 2013. Because of these efforts, Judge Christen said, the circuit hardly missed a beat when COVID hit. 
“This man has improvised, innovated, and done an amazing job of harnessing technology to improve public access to our proceedings and to improve the efficiency of our court,” Judge Christen said. “He is passionate about the court’s mission and rarely misses an opportunity to engage in public outreach. Today anyone with a computer, tablet or smartphone can watch or listen to arguments free of charge and without leaving home. That is largely due to his persistent efforts.”
For his part Judge Thomas said many of the accomplishments during his tenure have been a collective effort across the circuit, but he is gratified to have played a role in increasing the court’s efficiency, which continues with a new case management system being jointly launched by the Ninth Circuit and Second Circuit.  He also said he was proud to have been active in trying to achieve a better workplace environment for all the courts in the circuit, which includes over 400 judges across nine states, Guam and the Northern Mariana Islands.
Johnstone earns accolades
Judge Johnstone received scores of letters in support of his nomination — including from former colleagues, past students, and a group of former Montana Supreme Court justices — and his confirmation was cheered by many.
Sen. Jon Tester, D-Mont., praised Judge Johnstone, a graduate of Yale College and the University of Chicago School of Law, in announcing his confirmation by the U.S. Senate on May 1. 
“Montanans expect their judges to apply the law without bias, in a commonsense way – and that’s exactly what Anthony Johnstone has done throughout his entire legal career,” Tester said. “I’m confident that Anthony will continue standing up for our constitution, and I’m proud to have helped push this Montanan’s confirmation through the United States Senate.”
Elaine Gagliardi, dean of the Blewett School of Law, in a statement after Johnstone’s confirmation, noted the school’s many professors and graduates who have gone on to sit on the court.
“It has been an exceptional privilege to work with Professor Johnstone for the past 16 years. As a professor at the University of Montana’s Blewett School of Law, he has trained a generation of Montana lawyers. I am proud to say that Judge Johnstone is the fourth professor or alumnus of Montana’s Law school to sit on the 9th Circuit Court of Appeals. He follows Chief Judges Walter Pope, Jim Browning and Sidney Thomas. Sixteen alumni from our small, yet outstanding, law school have become Article III judges and many more have become federal and state judges. It is an honor to have worked with Professor Johnstone.”