by Howard Bashman
20 Questions for Circuit Judge Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit:
"How Appealing" is delighted that Circuit Judge Stephen Reinhardt
of the U.S. Court of Appeals for the Ninth Circuit
has agreed to participate in this Web log's recurring monthly feature, "20 Questions for the Appellate Judge."
Judge Reinhardt was born in New York City in 1931. He attended undergraduate school at Pomona College and law school at Yale. After law school, he served as a Lieutenant in the Office of General Counsel of the Secretary of the Air Force and then as a law clerk to Judge Luther W. Youngdahl of the U.S. District Court for the District of Columbia. After that clerkship, Judge Reinhardt entered and remained in the private practice of law until he was confirmed to serve on the Ninth Circuit. During that period he also served in a number of civic posts, including President of the Los Angeles Police Commission and Secretary of the Los Angeles Organizing Committee for the 1984 Olympics.
In November 1979, President Jimmy Carter nominated Reinhardt to fill a newly created seat on the Ninth Circuit. The U.S. Senate confirmed Judge Reinhardt in September 1980.
Judge Reinhardt has his chambers in Los Angeles, California, and the Ninth Circuit has its headquarters in San Francisco, California.
Questions appear below in italics, and Judge Reinhardt's responses follow in plain text.
1. What are your most favorite and least favorite aspects of being a federal appellate judge?
My most favorite aspects include: (1) The ability to make a contribution to society, to promote fairness and justice, and to try to ensure that our Constitution stands strong and firm; (2) The opportunity to work on challenging and important legal problems; and (3) Sharing my working days (a majority of my waking hours) every year with a number of extremely bright, young, enthusiastic law clerks who then go on to make their own significant contributions to the law and the nation.
My least favorite aspects are: (1) The overly-restrictive view of individual rights and liberties that is prevalent in today's judiciary and limits the ability of the federal courts to play their intended role properly; (2) The inability to spend enough time on each case due to the overwhelming workload; and (3) The inordinate number of hours it is necessary to work in order to try to do a decent job, and the resultant inability to spend as much time as I'd like with my family.
2. Identify the one federal or state court judge, living or dead, whom you admire the most and explain why.
Justice William Brennan, whose philosophy of the constitution I admire deeply. He attempted, usually successfully, to apply the proper balance of factors in deciding constitutional questions so that the underlying principles and objectives would survive and flourish in our contemporary society. He had a broad and generous, rather than a cramped and niggardly, view of the law and its functions. He understood that the ultimate role of the law was to serve the interests of justice and, unlike many contemporary jurists, he possessed an essential qualification for the job: compassion. My next favorite is John Marshall, who had the vision to create a strong and independent federal judiciary and to give life to the essential concept of judicial review of the actions of the other branches of government. Finally, although neither a state nor federal judge, I'd add Aharon Barak, Chief Justice of the Supreme Court of Israel, to my all-time all-star list of jurists.
3. When did it first occur to you that your views concerning the proper resolution of important and controversial cases would often differ from the view taken by a majority of Justices serving on the U.S. Supreme Court, and do you believe it is appropriate for observers of the law to hold in higher regard those federal appellate judges whose decisions the Supreme Court commonly affirms and to hold in lesser regard those federal appellate judges whose decisions the Supreme Court commonly reverses?
Today's federal judiciary is substantially more conservative than it was when I was appointed by President Carter. It takes a far narrower view of the Constitution and of individual rights; it is far more concerned with elevating the rights of states and of entrenched authority. When I was appointed, my views on constitutional interpretation and the role of social justice in adjudication were generally in accord with those of the majority of the Supreme Court and of the members of the federal judiciary. That has changed for the worse.
I suppose that I first realized that my views would often differ from those of the majority of the Supreme Court in 1986, when President Reagan elevated Justice Rehnquist to Chief Justice and appointed Antonin Scalia to be an Associate Justice. President Reagan made no secret of his desire to alter radically the composition of the federal judiciary from his first days in office. What these appointments did was make it plain that future Supreme Court opinions would not only reach different results, but would generally look and sound much different from those issued during the post-New Deal era of enlightenment -- that there would be a retrenchment in the scope of the rights afforded all Americans. As the President appointed more and more federal judges -- with very few exceptions individuals who passed the Reagan Administration's various ideological and issue-specific litmus tests -- the courts gradually shifted farther and farther to the right of the ideological spectrum. Even those who would argue that the shift was not radical would be hard pressed to say that the judicial system, as a whole, was not considerably more conservative and far more interested in states rights and less in civil rights in 1988 than it was in 1980 when I was appointed. This rightward turn was made complete in 1990 and 1991, when the first President Bush replaced Justices Brennan and Marshall with Justices Souter and Thomas, thereby replacing the last true liberals on the Supreme Court with one moderate and one extreme conservative. Unfortunately, the policy of "judicial restraint" that we were told would result from this transformation has paradoxically resulted in an increasingly active judiciary, willing to strike down a litany of congressional laws and executive regulations that previously would have been considered unexceptional. The casualty of this movement has been the concern for social justice and individual rights that once served as the guiding principle of the judicial branch.
I would like to think that observers of the law would hold in high regard all judges who perform their jobs with integrity, dedication, and intellectual rigor, regardless of disagreements over judicial philosophy or rates of reversal in the Supreme Court. To be sure, there are many times when we are forced to think about how the Supreme Court might resolve an unsettled question of law in a particular controversy that comes before us. In certain types of cases we will try to divine what the court will do in order to reach what we believe will be the appropriate decision. It is not, however, our job to anticipate when the current justices of the Supreme Court will cut back on individual rights and to rush to do the dirty deed for them. Many times when my court has been reversed, it is because we have properly applied existing law, but in reviewing our decision the Supreme Court has adopted a new and different interpretation than it had previously given a statute or constitutional provision -- a new reading that is far more restrictive of individual or group rights. I certainly do not think that legal observers should hold in high regard those judges who are eager to anticipate how the Court will next choose to erode our rights and liberties and condemn those who respect stare decisis and apply the law as it exists at the time the case comes before them.
4. Some of your critics assert that you exemplify a discredited approach to judging whereby a judge decides how to rule based on his or her own personal preferences, divorced from precedent and other traditional tools of adjudication, and then manipulates the law to justify the result. Do you view that description of your approach to judging as accurate to any extent, and why or why not? Also, is this a criticism that in your view would sometimes appropriately be directed toward politically conservative judges, and what decisions would exemplify the use of that approach on the conservative side?
Conservative politicians eager to pack the courts with right-wing ideologues, and some of their camp followers in academia, have deliberately distorted the jurisprudence of judges who treat the Constitution as a living, breathing instrument. These distortions are nothing more than political slogans designed to vilify judges whose views differ from their own. This is regrettable. No judge I know, liberal or conservative, acts in the manner described in your question. Most, if not all, judges do their very best to follow the law as they understand it, to respect precedent, and to use the traditional tools of adjudication. The disagreements frequently result from differing views of what the Constitution mandates, of the proper role of the federal judiciary in a democratic society, or even of what legal principles apply to the construction of statutes. For example, when examining the purposes and objectives of a congressional enactment, one side may consider whether an interpretation that leads to unfairness and injustice is consistent with what Congress intended. The other may not care so much about what Congress may have had in mind, but instead may view the statutory question through a far narrower and more rigid set of legal rules. Usually, however, both sides are applying what they sincerely believe to be the proper jurisprudential principles. Each side may believe the other is misguided. Neither should accuse the other, however, of being dishonest or of refusing to follow the law.
We all frequently apply the law in ways we would prefer not to. I have sat on a host of cases in which, had I been imposing only a Solomonic sense of justice unconstrained by the Constitution, federal statutes, or precedent, I would have come to a different result than I was compelled to reach. It is not a happy task to have to uphold an unjust or unfair result. But it is one that, at least on some occasions, every appellate judge must perform. I am regularly required by law, for example, to affirm deportation orders and deny petitions for writ of habeas corpus in instances in which it appears to me that the result is unjust and in which I believe the individuals are being deprived of due process of law. However, the federal statutes involved, or an applicable precedent from this court or the Supreme Court, often leave me no choice.
None of this is to say that one's personal life experiences play no role in what one does as a federal judge. As judges, we are called upon to bring our full range of such experiences to bear upon the cases we decide. Indeed, we are appointed and confirmed partially on the basis of the "diverse" experiences we bring to the bench. One aspect of every judge's experience is, of course, his views of the proper role of courts in a democratic society, how the Constitution ought to be interpreted, how statutes should be read, and what judges ought to do in the face of manifest injustice.
So to answer your question directly, I do not view the description of my jurisprudence you have posited to be accurate or appropriate. Liberal judges -- and we are a small minority these days -- do not manipulate law to reach a predetermined result. We apply a particular philosophy of law -- often infused by concepts like "rights" and "social justice" that may appear foreign to the admirers of the jurisprudential views of those who see the Constitution only as a technical framework for the allocation of powers. The jurisprudential views we espouse are those we believe to be most faithful to the text, structure, and history of the Constitution. Conservatives -- be they "strict constructionists," "texualists," or "originalists," -- apply their own philosophy of law to the very same legal problems we face. It is naive, if not disingenuous, to assume that liberals are simply imposing a "personal preference," while those conservative judges who continually reach the same restrictive result, in case-after-case, are simply "following the law." Different legal philosophies produce divergent legal consequences. We can debate which constitutional philosophy is the more appropriate one, but it is intellectually dishonest, and ultimately a disservice to the law, to accuse those who subscribe to a competing philosophy of being lawless or engaging in misconduct.
5. You publicly criticized President Clinton and his administration for failing to nominate sufficiently liberal judges to counterbalance the conservative nominees that Presidents Reagan and Bush made in the 1980s and early 1990s. Such public criticism of a President's judicial nominees is a bit unusual coming from a sitting federal judge. In retrospect, do you believe you acted appropriately in making that statement, and why or why not? Also, what reaction, if any, to those remarks did you receive from other judges and from the White House and the Senate?
Yes. I believe it is appropriate for members of the judiciary to educate both officeholders and the public with respect to what is transpiring in the judicial system. President Clinton's immediate predecessors declared that they intended to bring about a judicial revolution which would reverse the dominant judicial philosophy then prevailing in the federal courts. They did so. When President Clinton, a graduate of the Yale Law School, and his wife, a fellow graduate of my alma mater, took over the White House, many persons inside and outside the legal profession assumed that the new president would attempt to restore the prior balance to the judicial system by nominating judges who were compassionate and were interested in protecting individual rights and liberties. This is not to say that the President did not choose a number of highly distinguished, qualified, and enlightened judges -- indeed, we have several Clinton appointees on our court today who help provide an important counter-balance to the increasingly conservative drift of the federal judiciary, including our own circuit. Still, in the main, President Clinton's appointments were not of the Warren-Brennan-Marshall-Blackmun school of jurisprudence. President Clinton's principal interest lay in avoiding battles over judicial nominees -- perhaps because he did not deem the composition of the judiciary sufficiently important to justify expending his political capital to fight in the Judiciary Committee and the Senate. And given that Senator Hatch, the Chairman of the Judiciary Committee, issued a number of "no liberals" ultimata, the President was deterred from nominating many highly qualified liberal candidates and too often accepted in their place individuals whose judicial philosophy was more akin to that of the opposing party. The few liberals, or perceived liberals, he was persuaded to nominate frequently saw their candidacies linger or die in the Judiciary Committee because the President refused to fight for their confirmations. To understand how far our courts have moved to the right, one need only note that three of the four former Justices named above, who exemplified the enlightened judicial philosophy rejected by the Reagan-Bush Court, were the appointees of Republican Presidents, and at the time of their appointment were considered moderates.
Finally, it is not uncommon for federal judges to be asked their opinions of potential judicial appointees by the White House, or the Justice Department, or even the Senate Judiciary Committee. In my view, it would have been hypocritical for me to have participated in that process without being willing to state publicly how the administration was conducting the important function of appointing judges, and what effect its policies would have on the administration of justice. Although I am aware that a number of politicians were unhappy with my comments and that some judges undoubtedly disapproved, no one ever directly expressed their disagreement to me either with regard to the substance of my comments or their appropriateness.
6. The U.S. Senate's consideration of your nomination to the Ninth Circuit did not proceed to confirmation as rapidly or smoothly as did the federal appellate court nominations of others made at that time. How did you come to President Carter's attention as a possible Ninth Circuit nominee? And what do you recall, positively or negatively, about your confirmation process?
I came to President Carter's attention initially because I was one of a group of approximately twenty-one persons recommended for ten newly-created judicial positions on the Ninth Circuit by a merit selection committee appointed by the President and composed principally of local attorneys. All ten appointments were made from the list of twenty-one. I know that after the list was announced, the Mayor of Los Angeles, Tom Bradley, spoke to President Carter directly about my candidacy and urged him to appoint me. I was at the time serving as the president of the Los Angeles Police Commission, having been appointed as a commissioner by the Mayor, with the assignment of trying to bring a measure of civilian control to the Police Department, as called for by the city's charter. I undoubtedly also came to the President's attention because I was the only judicial candidate in the nation who represented organized labor rather than corporate institutions. I am aware of only two labor lawyers who had previously been appointed to the federal bench -- Arthur Goldberg and Abner Mikva, who had practiced together in the same labor law firm in Chicago.
The confirmation proceeding was extremely unpleasant, but it taught me a lot about many subjects. Although my nomination was endorsed by the Republican attorney general of California, the elected Republican sheriff of Los Angeles County, and an extremely conservative Los Angeles Police Department chief of police with whom I had regularly and publicly disagreed, a group of extreme right-wing individuals and organizations opposed my confirmation by the use of perjury, false accusations, and even a fabricated police report, including a bizarre accusation that I was related to mobsters whose names I was familiar with only through the public media. Incredibly, I was also accused of a number of other acts, all of which were made up out of whole cloth, mainly by a confidential government informant who was then in the witness protection program under the jurisdiction of the FBI -- a witness the government continued to rely on in subsequent years to obtain criminal convictions in various parts of the nation. After a long, thorough, and painful investigation, the charges were all found to be without substance by the Justice Department and the Senate. Although my nomination was held up for a substantial amount of time, in the end only Senators Thurmond and Hatch voted against me. All other Republican senators, including those on the judiciary committee, voted in favor of my nomination, perhaps because it ultimately appeared on the consent calendar pursuant to an agreement between the Republican and Democratic Senate leadership. One thing I learned, however, was to view politically-motivated charges with skepticism and to refrain from assuming that persons are guilty in the absence of objective and persuasive evidence, even when the rumors or stories are spread by individuals connected with law enforcement. Another lesson was that opposition to injustice is not the sole property of members of either political party. Among those who came forward to support me when the false charges became public were a number of Republican lawyers who disagreed with many of my views but cared more about the truth and the integrity of the confirmation process.
7. The filibustering of judicial nominees whom the Republican party depicts as the antithesis of you is likely, whenever the Democratic party regains the White House, to lead to the filibustering of nominees perceived as too much like you. Is a moderates-only judiciary something to be preferred over a judiciary filled with Borks and Reinhardts, and if not are you willing to urge Senators to stop filibustering judicial nominees on the basis of the nominees' perceived ideology?
I do agree that a judicial system is better off with a mix of able, intelligent conservatives and liberals who may disagree on issues, than with a monolithic, mediocre group of moderates whose main virtue is acceptability. Nevertheless, I do not believe that it is in the interests of the country to have a president appoint only judges with extremely conservative views. So long as the president follows a policy of making his appointments for ideological reasons, and of appointing only judges who share his philosophical point of view, the opposing party has the right, if not the obligation, to block at least some of the most extreme of those nominees in order to attempt to bring some balance to the judiciary. If, on the other hand, a president decides to be a "uniter, not a divider," by appointing some judges with independent or differing judicial philosophies, and to insure some balance in the federal courts, there would be less reason for the type of opposition that we have witnessed in the past two or three years. In short, given the present circumstances, I would be more inclined to urge the president to change his approach to judicial appointments than I would to urge the senators to stop filibustering the most extreme of his nominees. So long as appointments are made on ideological grounds, and there is no room for the appointment of persons with different points of view, opposition based on ideology is perfectly appropriate, as is the use of all proper procedural means to make that opposition effective.
Much of the purported outrage over the use of the filibuster to block nominees appears to me to be both hypocritical and cynical. It can best be explained as part of a purely partisan attempt to manipulate public opinion. The use of a filibuster is indisputably more democratic than the use of the one-Senator "holds" that were so often used, frequently in secret, to defeat nominees during the Clinton Administration. The Republican controlled Senate blocked 63 Clinton nominees between 1995 and 2000. Since 2001, the time at which the "filibuster crisis" allegedly began, the Senate has failed to confirm just 6 of the President's 168 nominees.
Finally, after reading Slouching Towards Gomorrah: Modern Liberalism and American Decline
, I reject any suggestion that I am in any way comparable to Judge Bork. I would not nullify the Bill of Rights by allowing Congress to overrule the courts' constitutional decisions by a majority vote. And, unlike Judge Bork, who once analogized the Ninth Amendment to a text covered by an "ink blot," I believe that each and every part of our Constitution has meaning that binds federal judges. Liberalism is still a part, a critical part, of the American mainstream; those who reject fundamental constitutional principles, such as judicial review, are not.
8. If you could reverse or alter the outcome of any single U.S. Supreme Court ruling, which ruling would you select and why?
For many years, the Supreme Court ruling I found most objectionable was Bowers v. Hardwick
, 478 U.S. 186 (1986). In 1988, I dissented from two of my colleagues' decision to strike down the military's exclusion of homosexuals from service, as I felt bound to do by Supreme Court and Ninth Circuit precedent. In that dissent, I wrote that "history will view Hardwick
much as it views Plessy v. Ferguson
. And I am confident that, in the long run, Hardwick
, like Plessy
, will be overruled by a wiser and more enlightened Court." Watkins v. U.S. Army
, 847 F.2d 1329, 1358 (9th Cir.1988) (internal citations omitted). The fact that Lawrence v. Texas
, 123 S. Ct. 2472 (2003), was decided by a 6-3 margin of a highly conservative Court is itself evidence that the odious view of liberty and privacy adopted by the Bowers
Court was obviously wrong.
Other wrongly decided cases remain on the books, although few, if any, seem as evidently wrong to me as did Bowers
. One I would reverse is Korematsu v. United States
, 323 U.S. 214 (1944) (upholding the constitutionality of the internment of American citizens of Japanese descent), which, while it has been widely discredited, has never been explicitly overruled. I also find the Supreme Court's interpretation of the Eleventh Amendment plainly wrong in terms of text, history, and structure. Thus, I would reverse the case that started it all, Hans v. Louisiana
, 134 U.S. 1 (1890), and hold that the Eleventh Amendment does not bar a federal court from hearing a suit against a state by one of its citizens when such a suit is authorized by act of Congress. Finally, I would overrule the Slaughter-House Cases
, 83 U.S. (16 Wall.) 36 (1873), which unnecessarily imposed a constricted interpretation on the provision of the Fourteenth Amendment that was originally intended to do the most work -- the "privileges or immunities" clause. The overturning of any one of these cases would be a significant victory for the Constitution and our nation.
9. You and other highly intelligent liberals have not hesitated to criticize the U.S. Supreme Court when you believe that it has unfairly curtailed the rights of convicted criminals or individuals seeking to enforce federal rights against the States. On the other hand, in recent years the Supreme Court has issued many decisions that have enraged conservatives, such as
Bollinger, and decisions upholding a constitutional right to abortion. Instead of depicting the Supreme Court as monolithically conservative or liberal, isn't that Court more accurately viewed as moderate in an overall sense?
No. Even the Supreme Court's harshest critics have not asserted that the Supreme Court is wrong in every case. So in that sense, I suppose it is correct to say that the Court is not "monolithically conservative." But the fact that this Court has reached the plainly right result in some cases involving highly controversial social issues, as it did in Lawrence
, and has crafted compromise solutions in others, as it did in Casey
, and by reaching an obvious middle ground in the two recent affirmative action cases, is not evidence that this is a "moderate" Court. In fact, what has usually happened in the few cases in which the current Court has departed from its customary strict conservative views is that one member of the five judge conservative bloc has for one particular reason or another decided to agree in that particular instance with the four judge moderate minority. Such occasional individual switches do not mean that the Court as a whole is not deeply conservative, nor that it is not just one vacancy away from becoming "monolithically conservative" by any standard.
The fact that conservatives have been upset with one or two decisions in the past several terms says nothing about the overall ideological composition of the Court. The Supreme Court has moved far to the right in numerous areas of law -- federalism, habeas corpus, the interpretation of federal civil rights statutes, the power of Congress to enact such statutes, Indian law, and criminal justice generally are only a few examples. Simply put, the conservative view is unquestionably dominant in today's Supreme Court, as exemplified by the ever-shrinking Fourth Amendment (notwithstanding Justice Scalia's property-oriented, but still surprising, decision in Kyllo
). I think most people who say otherwise either aren't being honest or are being disingenuous. I doubt that many conservatives would advocate a return to the Court on which Justices Brennan and Marshall sat in the 1970's and 1980's, to say nothing of how they would feel about a return to the Warren Court of the 1950's and 1960's. And just as the handful of examples of "conservative" decisions from the heyday of the Warren Court does not transform the ideological preferences of that Court, the occasional occurrence of a reasonable, or a compromise, decision does not make the current Court "moderate," or anything other than a straight, unabashed, highly conservative institution.
10. A reporter who covers the Ninth Circuit advises me that you have never voted to uphold a death sentence. Is the reporter correct as a factual matter? And what do you perceive to be the most significant flaws in this Nation's capital punishment system?
The reporter is correct only if one does not count the cases in which I have declined to call death penalty cases en banc, and have allowed executions to proceed without casting a vote in opposition.
It is true that I have not, since becoming a member of the Ninth Circuit, voted affirmatively to uphold a death penalty. But that is not in my view of particular significance. My review of the record indicates that in over twenty-three years on the bench I have participated in only twelve three-judge panels that decided to affirm or to reverse an individual's death sentence. That rate amounts to just slightly more than one case every two years. In the vast majority of those cases, nine out of twelve, I voted with the majority to overturn the death sentence. In one of the three in which I dissented -- a case involving clear racial bias against a black defendant -- the en banc court overwhelmingly rejected the majority's decision in an opinion written by the author of the reversed opinion, a Reagan appointee, who had experienced a well-deserved change of heart between the time he wrote the original opinion and the time he decided, correctly, that the death sentence imposed in the case was unconstitutional. See Coleman v. Risley
, 839 F.2d 434 (9th Cir. 1988), rev'd en banc sub nom. Coleman v. McCormick
, 874 F.2d 1280 (9th Cir. 1989). Thus, in only two cases in twenty-three years did I disagree with a court majority on the merits of whether a particular death penalty sentence comported with the requirements of the Constitution. In none of the cases in which I voted to reverse a death sentence did either the en banc court or the Supreme Court subsequently overturn the panel's decision or hold that the death sentence at issue was constitutional. In my view, the constitutional violations in each of the cases in which I voted to reverse the death penalty were egregious. Each was dictated by the controlling law, and I remain firmly convinced that each was correct by any standard.
In almost all of the capital cases that come before us, there is no dispute that the state court committed some type of constitutional error. The question we are most frequently called upon to resolve is whether the person should be executed notwithstanding the errors committed below. In the two instances in which I have differed with a majority of my colleagues on the merits in a capital case, it has been over whether certain errors were substantial enough to warrant reversal. I do believe that "death is different" -- a belief repeatedly mocked by some conservatives -- not only because in our system taking the defendant's life is the "ultimate penalty," but also because once the penalty has been imposed, there is no way of rectifying a wrong decision. Perhaps fortunately, I have not yet been compelled to cast a vote in a case in which I believed that a proper application of the controlling law would require me to affirm a death penalty. If I were to confront such a case, I would have no choice but to so vote.
With respect to the flaws in our current system, a fundamental problem is the impossibility of arriving at objective standards for separating those society chooses to execute from those it decides to punish by lifetime incarceration. A regrettably large number of individuals commit crimes that make them eligible for death sentences under the various state laws. Yet few of them ever receive the ultimate penalty, and those who do are not in any objective sense more deserving of execution than those who do not. A multitude of subjective decisions are made along the way, by prosecutors, defense lawyers, judges and jurors. Standards are applied inconsistently and unequally from case-to-case. Frequently, geography determines whether a capital defendant lives or dies. Two crimes identical in every respect except the counties in which they were committed will result in a death sentence in one case and a sentence of life-without-parole in another.
The result of all these disparities and arbitrary inequalities is that those who are ultimately designated for execution are frequently society's most vulnerable rather than its most culpable. Poverty, race, histories of family troubles, sexual abuse, and mental disabilities all end up playing unacceptably large roles in determining who lives or dies. In almost every case of which I am aware in which an individual has been executed, he had been a victim of serious and persistent sexual abuse as a child, usually at the hands of a close relative, and in addition possessed a severely limited mental capacity. An example is Rickey Ray Rector, who was missing half his brain at the time of his trial. Rector put aside his dinner on the evening of his execution so that he could enjoy it later. Earlier that afternoon he watched television and saw Governor William Jefferson Clinton, who had rushed back to Arkansas on the eve of the New Hampshire primary to be present in the state capital to avoid any hitches in the execution (and, some believe, to get his picture in the next day's national press as a tough on crime, law and order kind of a guy). On seeing Clinton's familiar face, Rector commented enthusiastically, "I like that man. I voted for him." Finally, as if all of this were not enough, many capital defendants receive wholly inadequate defenses, resulting in death sentences for those whose offenses warrant only life imprisonment, and dramatically increasing the risk that the state will kill innocent defendants. In short, choosing those to be executed is not a science. It is an extremely subjective process, and thus an arbitrary one; the decision is all too often determined by the biases and prejudices of the decision-maker, and is, in the end, one that may be beyond the capacity of ordinary mortals to make.
When you have reviewed death sentences for over twenty years, you begin to see how irrational the line between state-ordered life and death is in our criminal justice system. Human life is too precious to have its continued existence depend on fortuities such as the geographical location of the crime, the individual proclivities of prosecutors, jurists, and other decision-makers, and the luck of the draw in the assignment of judges and of counsel who may or may not be sufficiently dedicated and experienced to do one of the most difficult jobs in the legal profession at considerable personal sacrifice in terms of time and money. If the Constitution does not tolerate inequalities in the standards used to recount ballots in a presidential election, it certainly should not tolerate disparities in the administration of the capital system that are far more troubling and consequential. It was a recognition of these truths that led Justice Blackmun to shun forever "tinker[ing] with the machinery of death."
11. Should federal judges ever consider the likely public reaction to their rulings when determining what decision to render in a case? And what is your reaction to calls that some legislators have made, based at least in part on rulings in which you have joined, to strip the federal judiciary of the ability to decide cases involving certain subject matters?
It is plainly not the job of a federal judge to consider the likely public reactions to his decisions. We are required to resolve cases and controversies properly brought before us in accordance with the Constitution, relevant statutes, and precedents. We are often called upon to defend rights and liberties enshrined in the Constitution, and to provide protection against public passion or popular will, particularly when those rights are being exercised by unpopular individuals or groups. Indeed, the Bill of Rights was designed to protect unpopular minorities against the tyranny of the majority. Allowing ourselves to be influenced by what an unhappy majority might say would constitute a violation of our duties as federal judges. I would exclude from this, of course, those cases in which we are required as a matter of law to examine public attitudes. The Eighth Amendment cases provide one example. See Atkins v. Virginia
, 536 U.S. 304, 312-14 (2002).
Calls for Congress to pass jurisdiction-stripping provisions are nothing new. In the 1950s, for example, the proposals were designed to prevent courts from interfering with states' rights to discriminate against blacks. Since then, legislators have regularly offered bills to strip the federal courts of jurisdiction to hear cases involving the social issue du jour. As long as the federal courts act to defend constitutional liberties against legislative encroachment, I expect that some members of the political branches will continue to call for limitations on the judiciary's power to hear cases in those areas. Fortunately, responsible legislators have always rebuffed such efforts, and I am confident that they will continue to do so.
12. Two of your colleagues on the Ninth Circuit -- Diarmuid F. O'Scannlain and Andrew J. Kleinfeld -- have previously answered "20 questions" here, and each explained the reasons why he favors splitting the Ninth Circuit into two (or perhaps three) smaller circuits. What is your view concerning whether the Ninth Circuit should be split into two or more circuits, and how do you respond to the reasons favoring a split that Judges O'Scannlain and Kleinfeld have raised? Also, do you deserve any credit for convincing Circuit Judge Alex Kozinski to oppose a split?
First, as a matter of fundamental judicial policy, I am opposed to splitting the circuit for partisan political reasons -- and that indeed is the basis of the various current proposals. Second, a split would make little practical sense as close to eighty percent of the work of our circuit involves decisions by courts located in California. The most sensible of the proposals for a new separate northwest circuit would leave our old circuit with almost as much work as we now have and fewer judges. It would not accomplish any of the objectives cited by those who claim that the circuit is too large. Third, there is a substantial advantage to insuring against provincialism in judicial decisions. The breadth and depth of our circuit provides just such a guarantee. Notwithstanding the above, I am not entirely opposed to a split if the judges, public officials, and lawyers from the Northwest generally wish to secede, as opposed to just those who belong to one political party. I am not convinced that there is presently any such bipartisan desire in the northwest to sever relations with the remainder of the Ninth Circuit. We should all be willing, however, to examine the question afresh from time to time. Incidentally, I have never claimed credit for convincing Judge Kozinski of anything. He is very independent and makes up his own mind, which is why some people find him to be so unusual a jurist.
13. The Judicial Conference of the United States has recently asked Congress to authorize seven more active judges to serve on the Ninth Circuit, which would give your court a total of thirty-five authorized active judgeships. Would a Ninth Circuit with thirty-five active judges cause you to favor a split of the circuit? If not, is there some size, either in total number of judges or in caseload, or some other threshold that if reached would cause you to favor splitting the court into two or more circuits?
Again, the question of how large a circuit is feasible is one we should examine from time to time. We will find the answer only after we determine, on the basis of actual experience, how well or poorly the court is functioning in the particular circumstance. As of now, I believe our court is functioning well and that little would be served by splitting off a number of states. There are no figures of which I am aware that would cause me to say that the time to split has come, nor am I certain how we would handle the problem nationally if the caseload continues to increase as it has. As the population grows and litigation increases, there is more and more work for the federal courts. The obvious answer is more federal judges. More circuits, however, would mean more inter-circuit conflicts and more uncertainty in the law. Indeed, additional circuits might well lead to an intermediate appellate court and, thus, to another level of courts through which already overburdened litigants would be forced to wend their ways. Chief Justice Burger's dream of such a multi-layered system may not be beyond resurrection, if we start on the course of circuit-splitting. Incidentally, I also don�t believe that it is an acceptable solution to give judges an unmanageable number of cases to handle and then simply stamp "affirmed" on habeas cases, immigration appeals, or pro se prisoner appeals.
14. The Ninth Circuit decides cases in which rehearing en banc has been granted using eleven randomly selected judges (from a potential total of twenty-eight active judges and any eligible senior judges). Not infrequently, none of the panel judges are selected to sit on the en banc panel. Only six judges are needed to form a majority on an en banc panel. Thus, fewer than one-fourth of the active judges can declare binding circuit law. Moreover, it is possible that those six judges may actually have been "outvoted" by up to eight other Ninth Circuit judges who have heard the same issue -- five dissenters on the en banc panel plus the three judges on the original panel. Isn't this procedure flawed, and how can it be justified?
To some extent there is randomness in the selection of the judges who make the decisions at every level below the Supreme Court. Most federal appellate courts hear cases en banc infrequently. While on average the Ninth Circuit hears approximately 18 or 19 cases per year en banc, the Second Circuit hears an average of one. The D.C. Circuit heard only a total of 33 cases en banc throughout the 1990s. Panels of three judges decide the remainder of the cases, often by the votes of two of the three panel members. The views of two or three judges are far more likely to be in conflict with those of a substantial number of their colleagues than are the views of our en banc court.
Our en banc system constitutes a practical compromise that works quite well. We have conducted statistical studies in an attempt to determine how frequently our decisions might be different if all of us sat together en banc rather than leaving the final decision to a representative number of our judges. The answer has been clear -- only rarely might the result have been different. It is important to keep in mind that the en banc procedure is used in a very small percentage of cases. In most instances, binding circuit law is established in the circuits generally by the votes of judges who constitute somewhere between one-eighth and one-fifth of the full court, not, as in the case of our en banc court, between one-quarter and two-fifths of the court's active members. Therefore, the problem you pose is a nice abstract one, but in reality the advantages of a representative en banc court far outweigh its disadvantages. Among other things, the use of en banc review along the lines developed by our court will ultimately help avoid a proliferation of circuits.
15. How did you happen to become Judge Kozinski's close friend, what interests do you have in common with him, and how do you avoid letting the major disagreements the two of you have had over cases from becoming personal? Also, did you mind when Judge Kozinski suggested that you might try to obtain title to his Lamborghini through wrongful means or when Legal Affairs magazine called him, and not you, the Ninth Circuit's "most controversial judge"?
My friendship with Judge Kozinski is a collegial and professional one. I believe that each of us has respect for the other's intellectual integrity. Because our views differ so dramatically, we have frequently been asked to discuss our legal philosophies before audiences of lawyers or law students. We both feel that it is a part of our job to help educate the public in the workings of the judicial system. Accordingly, neither of us is reluctant to explain publicly why we possess the particular philosophies or jurisprudential attitudes we do or to examine the work the judiciary is currently doing. On occasion, our serious disagreements over important issues have indeed caused tensions, and one case in particular came close to causing a permanent rift. Nevertheless, our mutual respect allowed us to overcome our differences and to continue to share our views jointly with audiences as disparate as the ACLU, the American Constitution Society, and the Federalist Society.
Did I mind Judge Kozinski's Lamborghini line in Kremen v. Cohen
? Of course not. Judge Kozinski has long written opinions that are not only legally precise, but also entertaining. He is free to use my name in his opinions any time -- particularly if he prefaces it with the words: "I have decided once again to follow the principle so wisely articulated by my able colleague . . ."
Nor do I mind that Judge Kozinski has been identified by Emily Bazelon, a talented and brilliant young writer, as our Circuit�s "most controversial" judge. I have never desired to be controversial. I would hope, rather, to be one of many judges who share the same enlightened legal philosophy and values. I would enjoy my job more were I one-of-many than I do in my current role as one-of-a-few.
16. You have previously defended the Ninth Circuit's local rule that prohibits citation to your court's non-precedential decisions. Currently, a proposed amendment to the Federal Rules of Appellate Procedure is under consideration that, if approved, would allow citation to non-precedential and unpublished opinions in all federal appellate courts beginning in December 2005. Why does the Ninth Circuit prohibit citation to its non-precedential decisions, do you continue to support your court's current practice, and what impact if any do you anticipate the new rule will have on the way the Ninth Circuit operates?
As I said earlier, I often find the work overwhelming. Most of us spend a tremendous amount of time on published opinions. We do so, in part at least, because we know that each aspect of our opinion may someday serve as precedent in circumstances which we may not have foreseen or to which we may have given insufficient thought. We must be particularly careful that what we think we are deciding not have unintended and undesirable consequences in future cases. That takes careful writing. Over eighty percent of our decisions are unpublished. If we were required to give those cases the attention we currently give to published opinions, we would not be able to do a proper job in any
case. I would suspect that if a mandatory rule passes requiring all circuits to allow all decisions to be cited, even if only for their persuasive value, you will see a huge number of dispositions that provide far less information than they do under our present procedure. If the new rule is adopted, we will have little choice but to avoid saying much at all in the overwhelming majority of our cases, and in the end the quality of our published opinions will likely suffer as well. The losers would be the litigants who now receive a far fuller explanation of how we decide their cases, for or against them, in our unpublished dispositions than they will receive in the future.
17. Is the salary now paid to federal appellate judges too low? What should federal appellate judges be paid or, perhaps less controversially, how would one determine what the proper salary should be?
Yes, the salary paid to federal judges is far too low. Our law clerks frequently make more the first year after they leave us than we do. Judges who wish to send their children to college have a difficult time unless they have independent incomes. More judges have left the federal bench in recent years than in our entire prior history, and the reason has been that they are simply unable to meet their obligations, given the current unwillingness of Congress to pay judges anything near what successful lawyers in most major cities receive. An even greater concern is that younger lawyers with family responsibilities, including providing for their parents, will be unable to accept judicial appointments and only the wealthy will become jurists. The bipartisan commission recently appointed by President Bush, the Volcker Commission, described the current level of judicial salaries as "the most egregious example of the failure of the federal compensation policies." That same commission found that American judges make far less than our counterparts in England and Canada. As to what the appropriate salary should be, I am willing to leave that to independent bodies such as the Volcker Commission and the earlier bipartisan quadrennial commissions.
18. Of all of the many opinions you have written since joining the Ninth Circuit, which opinion or opinions stand out as your favorites?
It is difficult for me to single out one opinion as my favorite. Were I forced to choose a few, however, I might well select from among the following: my probable all-time favorite is Compassion in Dying v. Washington
, 79 F.3d 790 (9th Cir. 1994) (en banc), a case involving physician-assisted suicide which I predict will someday become the governing law in this country; the dissent I wrote in Campbell v. Wood
, 18 F.3d 662, 692 (9th Cir. 1994) (en banc), in which I, joined by several of my colleagues, wrote that executing people by hanging was unconstitutionally cruel and unusual under the Eighth Amendment; Yniguez v. Arizonans for Official English
, 69 F.3d 920 (9th Cir. 1991) (en banc), another en banc opinion of mine in which our court struck down as facially overbroad under the First Amendment a provision of the Arizona Constitution which prohibited state officials from using any language but English while performing official acts;[FN.1] Armster v. United States District Court for the Central District of California
, 792 F.2d 1423 (1986), an opinion I authored in which I and two of my colleagues held that civil jury trials were a matter of constitutional right under the Seventh Amendment and that the Administrative Office of the U.S. Courts was without the power to order district courts to withhold such trials from litigants because of the anticipated unavailability of Congressional funding; and, most recently, my majority opinion in Gherebi v. Bush
, 2003 U.S. App. LEXIS 25625 (9th Cir. Dec. 18, 2003), a case in which we held that district courts have jurisdiction to hear habeas petitions filed by persons detained at Guantanamo Bay.
FN.1: The Supreme Court vacated our decision for reasons unrelated to the merits, but the Arizona Supreme Court subsequently followed our analysis in holding the measure unconstitutional in Ruiz v. Hill, 191 Ariz. 441 (1998).19. What are the most significant ways that attorneys practicing before the Ninth Circuit can improve their appellate briefs and their appellate oral arguments?
Attorneys should become more familiar with the facts and the record. It would also be helpful if they would arrange for moot courts in which they could practice their arguments; if they did, they would be less likely to be surprised by the questions we ask and better able to answer them. Finally, lawyers would do better if they answered the questions we ask rather than told us that the issues in their case are different. We already know that when we ask the question.
20. What do you do for enjoyment and/or relaxation in your spare time?
For enjoyment and relaxation, I attend sporting events or watch them on television. I also attend movies, plays and occasional concerts, usually classical. I am a Yankees fan, a Raiders fan, and a Lakers fan. I love almost all movies, good and bad, and go to the theater almost every evening when my wife and I are in New York. Perhaps my greatest pleasure is spending time with my wife, my children, and my grandchildren. I am presently trying to watch a one-year-old and a one-and-a-half-year-old granddaughter grow and develop during their early childhood. Although they both live within a mile of my home, I have far too little time to spend with them because I work most evenings and every Saturday. I have even less chance to see my three grandchildren who live in Massachusetts. Perhaps upon retirement I will have a greater opportunity to enjoy the role of grandfather, as well as father and husband, before it is too late.