Posted 12:28 PM by Robert

Davis Descending XLVIII: A Ninth Circuit Reversal Is Not Certain

The Note has commented with tongue likely firmly in cheek: Every sharpie in politics and the press knows that ... the 9th Circuit is going to announce today that they are taking the recall case en banc and that sometime next week they will overturn the three-judge panel and then the SCOTUS will refuse to hear it and the October 7 date will be restored.

The Note omits the scare quotes from around the "knows," but they are there in spirit. This is another egregious example of something that every sharpie in politics and the press "knows" being badly wrong.

The first indication that the reversal by the en banc court is not certain is the reason now commonly proffered for why the reversal is virtually certain - or highly likely. We are repeatedly told that the "most important" factor establishing a reversal is the identities of the judges on the en banc panel. In other words, the media are passing the message: If the en banc panel reverses, the conservatives will have "stolen" another election decision, and if the en banc court affirms then it can't have been for partisan reasons. Or as one of the three judges commented publicly in entirely improper fashion that the media has reproduced with enthusiasm: "You know who's on the panel, right? Do you think it's going to have much of a chance of surviving? I wouldn't bet on it," Judge Harry Pregerson said in an interview. Specifically, we are told reversal is assured (or all but assured) because the en banc panel is "conservative" or at least "relatively conservative" compared to the composition of the typical en banc panel one sees from the Ninth Circuit. And "relatively conservative" is supposed to be enough because the Ninth Circuit is now really quite moderate, not like in the bad old days when it was dominated by Carter appointees: [T]he consensus among legal experts yesterday was that most of the judges on the larger panel of the court, the United States Court of Appeals for the Ninth Circuit, are either aligned with the circuit's more conservative wing or are moderate in the sense of avoiding drastic actions like calling off elections.

Is that right? Is the Ninth Circuit "moderate?" Of course not. Forget about the Pledge of Allegiance case. We are supposed to believe that a Circuit Court that repeatedly - and in defiance of Supreme Court policy and express Constitutional language - tries to establish the Constitutional equivalence of illegal immigrant detention and criminal arrests is "moderate." This is a court whose first attempt to create a right to medical marijuana use was struck down by the Supreme Court, which the Ninth Circuit is still defying with tortured reasoning provided by the judge said to be its "leading conservative," whose presence on the current en banc panel is supposed to mean so much. But this court is nevertheless "moderate?" A court that allows the use of a patient's psychiatrist's testimony in civil commitment cases but not in criminal cases is supposed to be considered sound and "moderate?" One could go on for pages listing wacky Ninth Circuit results - many of them so strange that they defy "liberal/conservative" classification - but instead invite terms such as "eccentric," "willful," "self-indulgent" and even "defiant" and "incompetent" (such as this decision abolishing the October recall election). This circuit court is much farther off course than any other circuit court in the nation, no matter how many academics try to come up with phony measures of judicial "liberalness" or "reversibility" and/or "reliability" that purport to show that the Ninth Circuit does not have special problems. The Ninth Circuit has very special problems - and most people who have spent significant time around the Supreme Court can tell you that the Ninth Circuit is regarded by the Supreme Court as a big, general problem. As the liberal California Lawyer magazine puts it: Although the [Ninth] circuit's reversal rate is often exaggerated, its reputation for liberal decisions-and [Judge Stephen] Reinhardt's influence among his judicial colleagues-is well deserved.

So any argument that the Ninth Circuit will probably do one thing or another because it has become "moderate" or "relatively moderate" is already extremely weak - and the person making such an argument should be regarded as likely disingenuous or having a strong, personal agenda. For example, no intelligent observer should take seriously and at face value a comment like:

"But now [the Ninth Circuit's] really quite balanced. Any notion that there is a conservative wing or a liberal wing or a consensus or an embattled minority on one side, I think is total hokum."

In truth, no sensible person could doubt that a court including Stephen Reinhardt (paleoliberal: "I was a liberal from a very young age," he says. "I think I was born that way.") and Alex Kozinski (libertarian/conservative) has serious left and right wings. Yet this obviously wrong comment was made by Alex Kozinski himself, and not just once. He repeated the sentiment in a public forum at which he and Judge Reinhardt spoke at length.

Why?

It's not hard to find the probable reasons. Judge Kozinski serves on the same court as his many far liberal colleagues, including his personal friend Stephen Reinhardt. Judge Kozinski is therefore well advised not to alienate those other twenty-five people by publicly casting them and their opinions in rigid political terms. In addition, Judge Kozinski has well-known Supreme Court aspirations. So he doesn't want to make personal or political enemies - or to call his Supreme "judicial termperment" into question. He wants to be "Supremeable."

So let's not see any more quotes from Judge Kozinski to support some preposterous claim that the Ninth Circuit is "moderate" and now full of "excellent judges." It's not either.

The Ninth Circuit's ersatz quality of "moderateness" was supposedly conferred on it by Bill Clinton's gentle rain of appointments to the court. But those people are not "moderates." They are for the most part highly partisan, result-oriented far liberals who are simply more skilled than the Carter appointments in concealing their partisanship in judicial doublespeak. Democrats and much of the media characterized Richard Paez as one of those Clinton "moderates" during his confirmation fight. That was baloney then - and Judge Paez has established a result-oriented voting record for himself since his confirmation, culminating in voting for this embarrassing opinion now annulled and which the rest of this "moderate" en banc panel is supposedly going to reverse. But the rest of the Clinton crowd on the Ninth Circuit is no more "moderate" than Judge Paez is, the media is no more accurate in describing them or him as "moderate," and eight of the eleven members of the en banc panel were appointed by Clinton or Carter.

So, what should one expect of the en banc Ninth Circuit?

It is possible that the Ninth Circuit will completely reverse the three-judge panel and let the recall go forward (most en banc reviews seem to go that way). But if this happens it will not be because the en banc panel is "conservative." Rather, the three-judge panel decision is simply indefensible. Just for openers, it willfully misconstrues Bush v. Gore - whose applicability as support for abolishing the October date is not even worth serious discussion - although it has been given far more of that than it deserves. Worse, such reliance on Bush v. Gore is not just wrong, but appears to be motivated by the desire of this Ninth Circuit three-judge panel to "stick" Bush v. Gore back to the Supreme Court and the supporters of its opinion - which all but guarantees reversal. The three-judge panel was not only incompetent, it was emotionally and legally incontinent: the judges just could not restrain themselves from what they see as the sheer irony of using Bush v. Gore in these circumstances. These three Ninth Circuit judges share that incontinence with Laurence Tribe, who could not even restrain himself in his Wall Street Journal Op-Ed from contemptuously referring to the Ninth Circuit "simply honoring the principle--a principle much older and more deeply rooted than its purported application in Bush v. Gore."

But to reverse the three-judge panel, the en banc court must not only find that the panel's opinion is wrong (that much is easy), the en banc court must find that the law runs in favor of the October recall date. In other words, the en banc court must not come up with its own reasons for condemning the October date.

And it is here where things may get really messy. I have noted before that Bush v. Gore is not the best precedent supporting the rejection of the October date. The en banc court could eschew reliance on that case, and purport to base a new opinion on other precedent and as many narrow facts as possible - that would help to deter the Supreme Court from intervening. Then a remedy returning the whole thing to the district court for messy fact finding could be crafted. And at the end of the process, the Ninth Circuit could continue to deny millions of Californians the right to vote to recall their governor in the name of protecting "democracy."

That's all part of what it means to be skilled in concealing one's partisanship in judicial doublespeak.

UPDATE: The Wall Street Journal has this Ninth Circuit hit parade:

Its greatest hits include a ban on the Pledge of Allegiance, and a ruling by a three-judge panel that prisoners had a right to procreate, ordering a penitentiary to let an inmate ship his sperm to his wife. (The en banc court later reversed.) In 2000, a panel ruled that homophobia was grounds for political asylum by granting asylum to a Mexican cross-dresser. In 1999 the court upheld medical marijuana clubs in a decision later reversed by the Supreme Court.

Then there's California's Three Strikes law, upheld by the U.S. Supreme Court. Judge Harry Pregerson -- one of the three judges on last week's recall panel -- has refused to go along, saying he has to follow his "conscience." .... Last term the Supreme Court reversed 75% of the Ninth Circuit cases it took, a record that has held steady for about a decade. Three rulings were unanimous -- including one in which the Ninth Circuit had declared that the Oakland Housing Authority had no right to evict tenants whose relatives had committed crimes on housing authority property.

But this is a "moderate" circuit. Much more "moderate" since President Clinton fixed it. So much more "moderate." So comfortably - yawn - "moderate." So "Mmmm-mmm-moderate."