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Both were apoplectic about the possibility of the election being delayed (as were California's election officials and, wisely or not, Davis himself).With the vote about whether to rehear the case just 34 hours away, Kozinski decided to spend the evening (and early morning) bombarding his colleagues with all the reasons why the election should go on as scheduled. he got a law clerk on the phone and handed off a research question about absentee ballots. Between and a.m., Kozinski sent three memos to the Ninth Circuit's e-mail list.When the judge checked his e-mail at the next morning, after hearing oral arguments in a different case, he was disappointed that no one had responded.

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Judge Stephen Reinhardt, the leading liberal on the circuit and a friend of Kozinski's, had his doubts.

'I called him after the first round of e-mails and I said, 'Alex, what are you doing? Don't you have anything better to do with your time? Back in Pasadena on Friday morning, Kozinski sat at his computer keeping a tally as the judges' votes rolled in over e-mail.

Three judges had recused themselves, and rehearing the case would require the support of a majority of the remaining 23.

At ON A WEDNESDAY EVENING IN LATE SEPTEMBER, Judge Alex Kozinski, the high-flying conservative of the Ninth Circuit Court of Appeals, bounded into his San Francisco chambers wearing black Keds, cargo pants, and a stretched-out blue polo shirt. His law clerks usually read and send out his court-related e-mail, but they had already left the bare-bones visiting chambers—not for home, but for the judge's home base in Pasadena, 400 miles to the south.

Kozinski, who builds computers for fun, logged onto their terminal without a password, gleeful about having rigged it to bypass court security. The inbox held two new briefs opposing the decision recently issued by three other Ninth Circuit judges to stop the election to recall California governor Gray Davis.

Kozinski ripped open a package of printing paper and thumped the stack against a table to align the edges.

While the printer hummed, the 53-year-old judge leaned back, happy to digress for a moment.

He told me about Karl May, the 19th-century pulp fiction writer whose many books the judge has read in German. May is known for his oddly imagined version of the American Wild West, in which an uber-cowboy and his Apache blood brother gallop along, slaying their foes.

The image was a fitting one that night, because Kozinski was in the midst of leading the charge in his circuit's own version of cowboys and Indians.

The Ninth Circuit is the country's most notorious federal appeals court, and for Kozinski, the recall case was the season's showdown, a chance to head off an expansive approach to voting rights he saw as 'very dangerous.' When he had learned of the three-judge panel's decision earlier that week, Kozinski made the call for en banc review, in which the Ninth Circuit's 26 judges would draw an 11-judge panel to rehear a case.

The briefs that Kozinski received on Wednesday night came from two minor candidates for governor, members of the horde that had signed up to replace Davis.

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