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Reinhardt on Posner:
In the Michigan Law Review, Ninth Circuit Judge Stephen Reinhardt has a book review of Seventh Circuit Judge Richard Posner's recent book Not a Suicide Pact. It has lots of interesting tidbits and asides on what Reinhardt thinks of Posner more generally. For example, here is Reinhardt's take on Posner's widely-read book review in the New Republic of Aharon Barak's book on judging:
My quarrel is unfortunately with Posner's conclusions and, more particularly, his judgment. To use his words, I admire his skills as a "technician" but not as a "policy maker" (p. 19). Recently, for example, he wrote a review of a book by the world's leading jurist, Aharon Barak, the former president of the Israeli Supreme Court who teaches with some regularity in his spare time at Yale Law School. Posner ends the review with the incredible statement, "No wonder he frightens Robert Bork." Talk of bad taste, let alone bad judgment. It would be tough to match. Bork is a bitter figure still licking his wounds from his public rejection. Barak is a giant in the law, admired throughout the world. Shame on Posner!
This passage at the end is also interesting:
  Th[e fact that judges act as policymakers] is why the battle over the appointment of members of the Court is so critical and why the Democrats—belatedly, and possibly too late—may finally be awakening to the importance of the Supreme Court confirmation process, something that the right wing well understood many years earlier.
  I feel more confident in judges than in elected officials safeguarding our constitutional liberties. But I would feel even better were there some Warrens, Brennans, Marshalls, Douglases, Blackmuns, or even more Stevenses currently making the decisions that will determine the nature of our rights and freedoms—and indeed the nature of our society—for years to come. I would even feel more comfortable with a Richard Posner making such decisions than a George W. Bush—but not by much.
DiverDan (mail):

Bork is a bitter figure still licking his wounds from his public rejection. Barak is a giant in the law, admired throughout the world. Shame on Posner!


Bitter or not (and who can really blame him, after the shameless way his political adversaries lied and grossly misrepresented him and his views during that circus of a confirmation hearing!), in my own view, Bork is a giant in the law, and Barak scares me. I don't know much about Reinhardt, other than the fact that he sits on the most liberal, off-the reservation, and most reversed Circuit Court of Appeals in the country; he may be among the rational judges on that Court, but, judging solely by the numbers, the odds are against it. That alone is enough to make me a bit wary of giving his views any credence.
4.11.2008 1:28pm
TerrencePhilip:
You know, you could read any number of Reinhardt's opinions and conclude "Shame on Reinhardt" if you consider honest statements of fact and law a priority.
4.11.2008 1:31pm
Hans Bader (mail):
Judge Posner's description was an apt, if rather gentle, critique of Barak's judicial philosophy.

Aharon Barak was a horrible judge who flouted the limits on his own power, distorted the meaning of the law, and engaged in biased, politicizing "judging."
4.11.2008 1:31pm
alias:
It's very interesting. I haven't read a lot of book reviews in law reviews, but this one seems to be mostly a rambling discussion of Judge Reinhardt's one-liner views on Judge Posner, current events, and judging generally.

It sounds like SR needs to write his own book.
4.11.2008 1:34pm
DJR:
So this is off topic, but reading this led me to reflect on my own opinion of Posner, who, though I have never met or argued before, I find infuriating when he stridently ignores precedent or general principles of whatever is before him in order to write an "entertaining" opinion. While I quite like those same qualities when Posner's decisions come out the way that is helpful to my clients, it leaves me with the impression that he is enchanted with his own voice and not really a very careful jurist.

Similarly, every time I run across an unfamiliar word in an appellate opinion, I check to see whether I am reading a First Circuit opinion, and that it is written by Selya, both of which invariably turn out to be the case. Though I have never given much though to his jurisprudence overall, I think he's a dick every time I read one of those words.

What other Judges do we make unjustified assumptions about because of their writing style?
4.11.2008 1:40pm
Tony Tutins (mail):
Both Bork and Posner criticized Barak for arrogating so much power to the judiciary, replacing the rule of law with the rule of judges in Bork's words. Apparently there is no way either the Knesset nor Israel's executive can override a decision of the Supreme Court; no possibility of amending Israel's unwritten constitution. This would frighten anyone who believes in the separation of powers.
4.11.2008 1:42pm
JohnO (mail):
<blockquote>
Aharon Barak was a horrible judge who flouted the limits on his own power, distorted the meaning of the law, and engaged in biased, politicizing "judging."
</blockquote>

Which is why Reinhardt would find him to be the best judge ever.
4.11.2008 1:52pm
titus32:
Reinhardt's description of Posner as a "technician" strikes me as strange, given Posner's pragmatic approach to judging--perhaps he is just referring to Posner's skill at reaching a pragmatic result (just as Reinhardt is skilled at reaching a left-wing result)? At any rate, I look forward to Posner's response (especially his remarks on Barak), which should be devastating.

BTW, DJR: I don't agree with your assessment of Posner -- his opinions don't hinge on their entertainment value, he would reach the same results regardless. As an aside, re your Selya litmus test, watch out for Fernandez opinions (9th Cir.) as well.
4.11.2008 2:00pm
JonC:
Judge Reinhardt:


Th[e fact that judges act as policymakers] is why the battle over the appointment of members of the Court is so critical and why the Democrats—belatedly, and possibly too late—may finally be awakening to the importance of the Supreme Court confirmation process, something that the right wing well understood many years earlier.


Yes, because as we all know, the Democrats and their interest group surrogates completely sleep-walked right through the Bork, Thomas, Roberts, and Alito nominations.

It seems to me that this kind of "their side is so much better organized/politically astute/ruthless than our side" thinking is common among partisan operatives on both sides of the aisle, no matter whether it bears any relation to the truth. Perhaps it's not entirely surprising that it's typical of Judge Reinhardt's thinking as well, given that he seems to view the law in nakedly political terms.
4.11.2008 2:00pm
Sam Draper (mail):
I have some sympathy for Reinhardt's judicial philosophy at the trial level, but that philosophy is incompatible with the role of an appellate judge.

I read Posner's review and didn't find it in "bad taste;" some of Reinhardt's comments about Posner were worse.
4.11.2008 2:07pm
H. Tuttle:

I feel more confident in judges than in elected officials safeguarding our constitutional liberties. But I would feel even better were there some Warrens, Brennans, Marshalls, Douglases, Blackmuns, or even more Stevenses currently making the decisions that will determine the nature of our rights and freedoms—and indeed the nature of our society—for years to come


Memo to Reinhardt: Run for office if you want to make policy. Reinhardt's "confidence" in the judiciary safeguaring our "constitutional liberties" is outright laughable, given the proven track record of his brand of judging short-circuiting the political process to arrive at decisions they, of course, believe to be the only correct outcome. Reinhardt's approach to the role of the judiciary is nothing less than a danger to freedom and democracy.
4.11.2008 2:08pm
U-M 3L:
Reinhardt makes me appreciate the new politicized confirmation process. As long as there are 40 Republicans in the Senate, average practioners who worked for the Democratic National Committee and are married to executives in the ACLU don't get confirmed as CoA judges anymore.

At least stealth judges aren't so brash.
4.11.2008 2:11pm
Dave N (mail):
I don't know much about Reinhardt, other than the fact that he sits on the most liberal, off-the reservation, and most reversed Circuit Court of Appeals in the country.
He is the most liberal judge on the 9th Circuit. Period. End of discussion. 'Nuff said.
4.11.2008 2:21pm
Klerk (mail) (www):
This is the best example of pot calling kettle that I have seen in a while. Talk of bad taste followed two sentences later by Shame on Posner!

@ DiverDan -- Reinhardt might well be the most liberal judge on that court. From Bench Memos:

In Reinhardt's overtly political view of judging, "The judgments about the Constitution are value judgments. You reach the answer that essentially your values tell you to reach." Reinhardt is probably the most overturned judge in history: In one year alone, the Supreme Court reversed him on eleven occasions, including (as Yale law professor Akhil Amar put it) "unanimously an unbelievable five times." Ever defiant, he declares, "They can't catch them all."
4.11.2008 2:26pm
Roscoe B. Means:
I've been led to believe that Judge Reinhardt is less frightening as a person than he is as a judge. But my impression from reading his opinions has been that his bias acts as a huge set of blinders. His fact statements often seem to establish a strong case for the losing side under the law he decides to apply. I thought Ceballos v. Garcetti (later reversed by the Supreme Court) was a good example. His rendition of the facts showed beyond any reasonable doubt that the Plaintiff's "expression" had caused actual, major disruption in the operations and "service delivery" of the District Attorney's Office and the Sheriff's Office. His opinion described the effects at length, in words that seem to leap off the page as recognition of severe disruption, then blithely stated "the defendants have failed even to suggest disruption or inefficiency in the workings of the District Attorney's Office."
4.11.2008 2:35pm
tbaugh (mail):
Well, at least Reinhardt has finally said fairly directly that he doesn't believe in democracy, something which seemed apparent in any event, but is rather unmistakeable now ("I feel more confident in judges than in elected officials safeguarding our constitutional liberties. But I would feel even better were there some Warrens, Brennans, Marshalls, Douglases, Blackmuns, or even more Stevenses currently making the decisions that will determine the nature of our rights and freedoms—and indeed the nature of our society—for years to come")
4.11.2008 2:37pm
Dave N (mail):
As a habeas corpus practitioner, I had a long-standing offer to buy lunch to ANYONE who could point me to a pro-prosecution merits habeas decision (published or not) in which Judge Reinhardt merely sat on the majority side--he didn't even have to author the opinion. I finally came across one unpublished disposition that met this criteria.

The Holy Grail is a pro-prosecution habeas corpus decision actually authored by Judge Reinhardt and decided on the merits. I am unaware of ANY, and he has been a Ninth Circuit judge for over 25 years now. The closest cases that would meet this criteria are Wells v. Maas, 28 F.3d 1005 (9th Cir. 1994)--but even in that case Judge Reinhardt found against the State of Oregon on a procedural default issue.

Because he is such an unabashed ideologue, I actually framed the denial of a Certificate of Appealability from one of my cases in which Judge Reinhardt and Judge Pregerson composed the two-judge panel.
4.11.2008 3:10pm
Salaryman (mail):

I feel more confident in judges than in elected officials safeguarding our constitutional liberties. . . . [and determining] the nature of our rights and freedoms — and indeed the nature of our society — for years to come


That Reinhardt feels this way should be no surprise to anyone who's been paying attention. Indeed, his forthrightness in expressing his disdain for democratic rule is, I guess, commendable in a sense.

The problem with allowing unelected, life tenured judges rather than elected officials to determine the nature of our rights, freedoms, and society for years to come is that you can change elected officials relatively easily if you realize you've made a mistake, while for all practical purposes "life tenure" really means "life tenure" when it comes to the (federal) judiciary.
4.11.2008 3:12pm
Chris Newman (mail):
I'm just confused by the apparent internal inconsistency of the quotes. If the Democrats are only just now awakening to the importance of the confirmation process, then why is it that Bork wound up with wounds to lick? Were they self inflicted?
4.11.2008 3:13pm
LarryA (mail) (www):
Th[e fact that judges act as policymakers] is why the battle over the appointment of members of the Court is so critical and why the Democrats—belatedly, and possibly too late—may finally be awakening to the importance of the Supreme Court confirmation process, something that the right wing well understood many years earlier.
Right. I remember back in (I think) the 70s when Democrats were wailing about SCOTUS "swinging to the right." I kept thinking that if it swung far enough right, it just might approach center.
4.11.2008 3:29pm
genob:
Democrats only now waking up to the idea that Supreme Court appointments are critical and the confirmation process important? Give me a break. Poor Bambi-like idealistic Democrats finally catching on to the rought and tumble world of politics.

I'm no history major, but I seem to recall hearing something about a court packing plan put forth by Roosevelt in 1937....Seems like he understood the importance...And I think he was a Democrat.
4.11.2008 3:30pm
autolykos:

The problem with allowing unelected, life tenured judges rather than elected officials to determine the nature of our rights, freedoms, and society for years to come is that you can change elected officials relatively easily if you realize you've made a mistake, while for all practical purposes "life tenure" really means "life tenure" when it comes to the (federal) judiciary.


The way in which highly educated people who pretend to like democracy are willing to piss on separation of powers is just amazing. There's almost no realistic check on the Supreme Court. There hasn't been a judged removed in the modern era and constitutional amendments are so uncommon as to be nearly worthless (even where there's clear support for an amendment - such as flag-burning - democrats have the gaul to complain about the sanctity of the constitution).

Basically his argument boils down to "I think an oligarchy is better than a democracy, but I feel better if the oligarches are people that agree with me."
4.11.2008 3:30pm
The General:
More like Blowhardt.
4.11.2008 3:37pm
Clayton E. Cramer (mail) (www):
Philospher-kings? Philosopher-judges? Dictators ruling the peasants for our own good? All the same thing to Judge Reinhardt and the ACLU.
4.11.2008 4:03pm
TerrencePhilip:
There hasn't been a judged removed in the modern era and constitutional amendments are so uncommon as to be nearly worthless (even where there's clear support for an amendment - such as flag-burning - democrats have the gaul to complain about the sanctity of the constitution).

Actually from 1986-89, three federal judges were removed after impeachment.

Depending on one's vintage, I grant that this still might not count as "the modern era."
4.11.2008 4:18pm
Oren:
All told, if (heaven forfend) I'm consigned to be ruled by a dictator, better a dictatorial judge than a dictatorial legislature.
4.11.2008 4:19pm
Felix Sulla:

[E]ven where there's clear support for an amendment - such as flag-burning - democrats have the gaul to complain about the sanctity of the constitution[.]
First, if there were "clear support" of a sufficient level to carry an amendment on flag burning through the (intentionally) rigorous, long, and difficult process of amendment, one suspects it might have happened. But you were just assuming the result you desired, sort of like you accuse Reinhardt of doing, weren't you?

By the way, I see no way in which the generally-French Roman provinces has any bearing on this issue.

I have reservations about Reinhardt, but Jesus, these threads that just repeat "Yeah, he's a liberal and he sucks and so does California" twelve-dozen times suffer from more than a tad of onanism.
4.11.2008 4:42pm
Paul B:
TerencePhilip,

While it's true that judges have been removed in recent times, all of the cases involved garden variety corruption where there were no partisan issues at stake.
4.11.2008 4:48pm
neilalice:
I'm with TerencePhilip re: Reinhardt's problems in truthfully reciting facts and law. I'm a lawyer and have seem him rule against my client in a memorandum that misstated both the trial-court record and the controlling circuit decision in a single sentence.

In fact, I've seen several Ninth Circuit decisions, from judges across the political spectrum, that are not worth the paper they're printed on. Judges lie, and it's hard to catch them because the party who wins doesn't care about the lie. Keep that in mind when pondering which branch is the least dangerous.

I suppose the judges are more likely to lie in the unreported cases, but not always. Want proof? Take a look at Early v. Packer, 537 U.S. 3, 9 (2002), a decision in which the Supreme Court said that the Ninth Circuit's factual recitations "strain[ed] credulity."

But as for DaveN's point that Reinhardt is the worst or most liberal, I'm not as sure, at least not as long as Harry Pregerson is on the bench. Pregerson wrote, and Reinhardt joined, the Ninth's decision that Early reversed.

Marsha Berzon can give them both a run on the liberal front, too.
4.11.2008 5:26pm
ruleswatch (mail):

A non-American lawyer, sold by the snappy title, intrigued by American ideas of fundamental freedoms and with little knowledge of Judge Posner, I picked up a copy of Not a Suicide Pact through the magic of Amazon, credit cards, and the internet, just after it came out, about a year and a half ago.

I saw what was, to me, the remarkable proposition that judges could not be educated to deal with national security issues to such an extent that they should be doctrinally bound to defer to government assessments both of the extent of terrorist risk and how it should be dealt with. I also saw what seemed to be a kind of Tokeinist, Lord of the Rings-genre faith that an executive whose reach and power had been inflated by persistent judicial deference in times of trouble could confidently be expected to self-retract when the threat -- apparently, objectively measured-- had passed.

Then, leaving passage after passage underscored with pencil marks and marked with highlighter, I conducted a search of Not a for some framework, some analytical ghost that would allow me to assume, with Judge Posner, that there really was an operating dialectic that would allow me to take this tidal-like, ebb and flow for granted. I thought that underlying all of this, if I just looked hard enough, I could find it.

I did other research.

Seeking some pure, intellectual-core of Judge Posner's book propelled me into reading about Adams, Jefferson, the ambitious fellow who lived in New York and was killed in a duel whose name escapes me, just now, and about the years' long political arm wrestling and bun-fighting between federalists and anti-federalists. I tried to find intellectual roots for (and hence some discipline behind) the Posner position and I went back to Not a ... and I couldn't remotely find it.

Then, I learned that Judge Posner had started juridicial life as an expert in the economics of law. I went back to Not a ... to look for some sign that he had found some kind of self-righting mechanism akin to the economy's invisible hand to afford him the kind of confidence that "everything will work out fine," that his book radiates.

In my reading about the framers and the founders, which continued as a parallel theme to these efforts to distill Not a, I was confronted with a problem of how the intellectual young siblings of the Sons of Liberty could have conceptually allowed themselves to produce the Alien and Sedition Act (not to mention to actually have enforced it --with arms). Then I tried to decipher how the young republic which had produced so many writer-, thinker-, philosopher-, patriots could have been so thin of mind to have produced, or allowed to be produced that statute with seemingly intellectual counter-weight to the contrarianism of that statute. If I could find it there, I thought, I could find it in Posner's book.

I couldn't find it. To me, on some days, Not a Suicide Pact read like a pulp and paper monument to "Trust me." On others, with respect, it looked like it was being made up as it went along.

I finally settled on the formulation, "Posner too smart; me too dumb" packed the book, my notes, downloads from the internet and photocopies from the works on Adams in an old brief case and stored them in an old brief case behind my bedroom dresser.

That formulation may well yet be true.

But I can tell you through Judge Stephen Reinhardt's Michigan Law Review, review -- regardless of the many axes his own name itself has called out for grinding among your many commentators-- sure seems like a breath of fresh air to me.

As a non-American lawyer who can't give up a bit of hero worship for the likes of a now long dead John Sirica and a kind of bemused admiration for the DC District Court's recently headlined Reggie Walton, I'm not sure what intellectual rigour Judge Reinhardt's own writings might be built on, but I do admire the kind of straight talking, suspicious of power, kind of common sense he built his review on.

And, one final beef, if Judge Posner was going to use the snappy title, Not a Suicide Pact, it sure would have been nice if he had invented it.
4.11.2008 5:34pm
Carolina:

I've been led to believe that Judge Reinhardt is less frightening as a person than he is as a judge.


That was not the rumor when I clerked on the 9th. We heard he was quite a difficult boss.
4.11.2008 5:39pm
Carolina:
I've read the piece now. This bit, in particular, is just laughable coming from Reinhardt:


Courts are a different matter. There is no single
chief. There is a process that usually involves the participation of a
number of highly trained, well-educated, and comparatively neutral lifetime
public servants.


Reinhardt is one of the most committed ideologues around. I have never, not once, been surprised by Reinhardt's vote in a case. See Dave N's comment above, where he notes the stunning fact that Reinhardt has not written a habeas opinion finding for the government in 25 years on the bench. But he's "comparatively neutral." LOL.
4.11.2008 6:04pm
Dave N (mail):
neilalice,

Judge Pregerson is close--but no cigar. I give him credit for actually being part of the majority and affirming the denial of habeas relief in a capital case in Siripongs v. Calderon, 133 F.3d 732 (9th Cir. 1998).

As for Judge Berzon, I am not sure she is even the most liberal of the Clinton appointees--Sidney Thomas probably has that distinction, possibly followed by Richard Paez. I give her credit for at least concurring in Dennis ex rel. Butko v. Budge, 378 F.3d 880 (9th Cir. 2004), and for being part of the majority the last time I argued in front of her.

Is she liberal? Probably. Is she fair? Yes, I think so. Is she an ideologue? No, I really don't think so. Is Judge Reinhardt? Definitely.
4.11.2008 6:08pm
not a Reinhardt fan:
Even if Reinhardt is somehow right in his general view of the world and of law, he is downright nuts in saying that the Democrats, unlike the Republicans, are unaware of the importance of judicial confirmation fights. It is especially ironic that he separately criticizes Bork as too bitter because of his rejection. The Bork comment shows that Reinhardt does, indeed, remember that Bork was rejected in 1987, and I suspect that he knows that it was Democrats, not Republicans, who waged a high-profile campaign -- including TV commercials, which I think were unprecedented in the confirmation process -- to defeat Bork.

So were the Democrats that took down Bork not yet "awakening" to the importance of such battles? Or the Democrats that filibustered all those Bush 43 circuit appointments?

At most, he could make the case the Ds are not fighting hard enough, because some of them did vote for Alito/Roberts, or he could make the case that the Ds are not fighting as hard as the Rs, or some such thing. But the broad statement that the Ds today "may finally be awakening" to the issue, over 20 years after Bork, is just loony.
4.11.2008 6:18pm
ManBearPig:
ruleswatch, i would be interested in knowing what country you come from.

Our executive is more circumscribed than most around the world. It strikes me as odd that you'd find giving more power to POTUS (which i would be against) to be an altogether bad idea given the experience of most executives around the world is t have more power. I'd be interested in hearing what your executive looks like.

Also, referring to anything that reinhardt writes as "a breath of fresh air" sounds horrifying. That being the case, you must live in a gulag, as there's nothing fresh or freeing in his opinions.
4.11.2008 6:19pm
Carolina:
One more post, and I'm heading home.

What I find so distasteful about Reinhardt is the only rhyme-or-reason one can find in his jurisprudence is doctrinaire leftism. He's a leftist political hack masquerading as a jurist/scholar.

Take the article in question. A reader who knew nothing else about Reinhardt might read it and reasonably conclude Reinhardt is a true skeptic of government power, always defending the little guy against the power of the state. But that same person would then be quite mystified by Silveira v. Lockyer, in which Reinhardt spends 50+ pages explaining that individuals really don't have a right to arms to protect themselves against government tyranny, text of the constitution be damned. This hypothetical reader would also be surprised by Harper v. Poway School District, in which Reinhardt decided the government is perfectly free to censor students in the most obvious viewpoint-biased manner, so long as the goal is to favor groups Reinhardt wants to protect.
4.11.2008 6:36pm
q:

And, one final beef, if Judge Posner was going to use the snappy title, Not a Suicide Pact, it sure would have been nice if he had invented it.

You being a non-American lawyer would probably not realize it, but most lawyers would easily recognize that "Not a Suicide Pact" is clearly a reference to Justice Jackson's dissent in Terminiello v. Chicago. Or perhaps Justice Goldberg's majority opinion in Kennedy v. Mendoza-Martinez. I'm a little surprised Posner didn't explain the reference (and I have to assume he did not, since your criticism borders on an accusation of plagiarism), but his other writings make it clear he is aware of it. I don't see anything wrong with Posner using someone else's pithy statement in the title, since the American legal understanding of the phrase gives the title enough context to neatly summarize Posner's point.
4.11.2008 6:53pm
Oren:
This hypothetical reader would also be surprised by Harper v. Poway School District, in which Reinhardt decided the government is perfectly free to censor students in the most obvious viewpoint-biased manner, so long as the goal is to favor groups Reinhardt wants to protect.
As opposed to 'Bong Hits' (can't remember the plaintiff's name, since the moniker is so catchy) where Kennedy decided the government is free to censor students based on the values he choses (which, when all is said and done, amounts to little more than "drugs are bad, mm'kay").

Pretending that only the left is capable of rationalizing even the most obviously content-based restrictions on speech (both in the schools and, generally) is absurd. There's enough hatred of free speech across the political spectrum to go around.
4.11.2008 7:18pm
EveryoneElseIsDoingIt:
Haha, haha, Reinhardt is a Blowhardt. Reinhardt is a liberawacko. Reinhardt is dumb.

Look, ma, I can contribute to the "discussion" too.
4.11.2008 8:17pm
alias:
"drugs are bad, mm'kay"

See Baird v. Dep't of the Army, No. 2007-3046, dissenting slip op. at 2 (Fed. Cir. Feb. 26, 2008) (Rader, J., dissenting).
4.11.2008 8:47pm
guy in the veal calf office (mail) (www):
Does anyone have a comment on the contents of the article?

Are we at War? Is it a War that compels shrinkage of our liberties? Should the judiciary develop a theory under which resigns its role in balancing security and liberty in favor of the Executive?
4.11.2008 8:53pm
CDR D (mail):
>>I feel more confident in judges than in elected officials safeguarding our constitutional liberties. But I would feel even better were there some Warrens, Brennans, Marshalls, Douglases, Blackmuns, or even more Stevenses currently making the decisions that will determine the nature of our rights and freedoms—and indeed the nature of our society—for years to come.<<

This is "judicial Caesarism", pure and simple. Just as Gaius Julius, Augustus, and Tiberius destroyed the Roman Republic, it will be the Reinharts and his ilk that destroy ours.
4.11.2008 9:03pm
Dave Hardy (mail) (www):
"You being a non-American lawyer would probably not realize it, but most lawyers would easily recognize that "Not a Suicide Pact" is clearly a reference to Justice Jackson's dissent in Terminiello v. Chicago. Or perhaps Justice Goldberg's majority opinion in Kennedy v. Mendoza-Martinez. "

It's also been popularly and incorrectly attributed to Lincoln.
4.11.2008 9:33pm
common sense (www):
I think the discussion is less about the shrinking of civil rights in war, which is more than worthy of a conversation of its own, as two appellate court judges lobbing insults. Generally, judges are pretty civil to and about each other in public, so when one specifically calls out another by name, it is unusual, if nothing else.
4.11.2008 9:33pm
dcuser (mail):
Reinhardt is an embarassment. (And I say that liberal.)
4.11.2008 9:35pm
Calvin John TerBeek (mail):
Reinhardt deserves credit for honesty-and by that I mean his defiant liberalism-and forthrightness. Can you imagine this level of honesty from doctrinaire conservatives (Scalia, Thomas, Luttig (ret.), Wilkinson, etc.) who still cling to ostensibly neutral originalism.

That said, I think all of them have serious deficiencies as judges.
4.12.2008 1:06am
David M. Nieporent (www):
Pretending that only the left is capable of rationalizing even the most obviously content-based restrictions on speech (both in the schools and, generally) is absurd. There's enough hatred of free speech across the political spectrum to go around.
Oren, "tu quoque" is rarely a good rebuttal in a debate. It's always a poor rebuttal when it rebuts an argument that nobody made.

Nobody "pretended that only the left is capable of" anything. The post said that Reinhardt's self-description is inconsistent with his judging. What Kennedy or Scalia or Pope Benedict do is irrelevant to that point.
4.12.2008 1:40am
Elliot Reed (mail):
Our executive is more circumscribed than most around the world. It strikes me as odd that you'd find giving more power to POTUS (which i would be against) to be an altogether bad idea given the experience of most executives around the world is t have more power. I'd be interested in hearing what your executive looks like.
Well, most executives around the world lead totalitarian, authoritarian, or quasi-democratic states you probably wouldn't want to move to. Among the successful liberal democracies I believe the American head of government is unique (or nearly unique) in being removable only by legislative conviction for serious crime. And it requires a supermajority too. The process is so difficult that no American head of government has ever been removed by impeachment.
4.12.2008 1:55am
michael i:
Why hasn't Ninth Circuit Judge Stephen Reinhardt been impeached, tried, convicted, and removed from the bench by a responsible Congress?

(Hey! Stop laughing -- if you can.)
4.12.2008 5:56am
Lazlo Hollyfeld:
"Well, at least Reinhardt has finally said fairly directly that he doesn't believe in democracy."
Huh???
Because he feels "more confident in judges than in elected officials safeguarding our constitutional liberties." Isn't that the whole point of having a separate branch of tenured judges? Funny how quickly conservatives who worship at the altar of the Founders resort to the basest, populist strand of democracy when it comes to judicial decisions or figures they do not like. What would Madison do?
4.12.2008 11:53am
Oren II (mail):
David, I thought I made it clear I was against both sorts of content-based speech restrictions. It's not tu quoque, it's a challenge to both sides to at least be consistent.

Moreover, someone has got to protect us from legislative excess/overreach. If it ain't the judges then we are left to tender mercies.
4.12.2008 3:16pm
Zacharias (mail):
Well I personally would feel more comfortable if we had a few more non-Papists and a few more who had a clue about science, math and technology on the bench. Shame.
4.12.2008 7:09pm
Brian G (mail) (www):
Reinhardt is a joke of a jusge. It's that simple. Liberals may like his policymaking and that he is a wholly-owned subsidiary of the ACLU, no self-respecting legal student or professor could ever take his work seriously.
4.12.2008 7:30pm
Oren:
Brian, when you rip on someone else, it's not their own self-respect that is being impugned. Just FYI.
4.13.2008 12:24am
Lev:
ruleswatch - Alexander Hamilton

Oren II (Oren Jr?)


Moreover, someone has got to protect us from legislative excess/overreach. If it ain't the judges then we are left to tender mercies.


So what happens when the judges ok what the lege does? Who protects us then? Mr. Mossberg?

I read Posner's book on the 2000 election in which he justified the SCt's decision in Bush v Gore. His justification was pretty much: it would have been too messy to follow the Constitution.
4.13.2008 1:34am
Oren:
"Oren II" was me, I just couldn't remember my password (normally saved by my browser).

Lev: If the judges OK an act of the legislature as constitutional then the opponents (of the act) have to decide whether it's important enough to resist or if it's time to lay it down.

On the theoretical side, if you accept that there are things that even a legitimate sovereign may not do then one has to accept some restraint on the power of legislatures. That was my only point.
4.13.2008 4:59am
ruleswatch (mail):
Thanks Lev, sorry.
4.13.2008 1:16pm
Clayton E. Cramer (mail) (www):

All told, if (heaven forfend) I'm consigned to be ruled by a dictator, better a dictatorial judge than a dictatorial legislature.
Why? The legislature can be voted out. The judge can only be removed by somewhat more violent means.
4.14.2008 10:56am
BZ (mail):
Hmm, CommonSense suggests that "Generally, judges are pretty civil to and about each other in public, so when one specifically calls out another by name, it is unusual, if nothing else."

This is not necessarily true of Judge Reinhardt, as in Yniguez v. Arizonans for Official English, 69 F.3d 920
(9th Cir., 1995) en banc, in which Reinhardt specially concurred with his own majority opinion in order to attack Judge Kozinski. A brief sample:


"At the same time that Judge Kozinski callously ignores the interests of people, he stretches eagerly to place the powers of the government, in its role as speaker, beyond the reach of the Constitution. Indeed, it is the rights of the government that Judge Kozinski stresses at every opportunity. If Judge Kozinski had his druthers, public employees would be stripped of all First Amendment rights while performing their governmental functions.FN1 There would be nothing that Government-from the tiniest municipality on up-could not compel its employees to say, no matter how racist or abhorrent, and nothing that Government could not fire its employees for saying, no matter how innocuous. His would be an Orwellian world in which Big Brother could compel its minions to say War is Peace and Peace is War, and public employees would be helpless to object. It would not matter whether government had a legitimate purpose or even whether it had a purpose at all." 69 F.3d at 953.
4.14.2008 11:40am