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.
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.
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."
It sounds like SR needs to write his own book.
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?
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."
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Which is why Reinhardt would find him to be the best judge ever.
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.
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.
I read Posner's review and didn't find it in "bad taste;" some of Reinhardt's comments about Posner were worse.
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.
At least stealth judges aren't so brash.
@ DiverDan -- Reinhardt might well be the most liberal judge on that court. From Bench Memos:
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.
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.
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.
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."
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."
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.
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.
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.
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.
That was not the rumor when I clerked on the 9th. We heard he was quite a difficult boss.
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.
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.
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.
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.
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.
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.
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.
Look, ma, I can contribute to the "discussion" too.
See Baird v. Dep't of the Army, No. 2007-3046, dissenting slip op. at 2 (Fed. Cir. Feb. 26, 2008) (Rader, J., dissenting).
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?
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.
It's also been popularly and incorrectly attributed to Lincoln.
That said, I think all of them have serious deficiencies as judges.
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.
(Hey! Stop laughing -- if you can.)
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?
Moreover, someone has got to protect us from legislative excess/overreach. If it ain't the judges then we are left to tender mercies.
Oren II (Oren Jr?)
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.
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.
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.