Patterico's Pontifications

12/15/2009

Reinhardt Takes Sides . . . Literally

Filed under: Judiciary — Patterico @ 9:13 pm



A reader sends a link to a subscription-only law.com article about Stephen Reinhardt. According to the reader, the story contains this passage:

And even though he wasn’t selected for the en banc court, Ninth Circuit Judge Stephen Reinhardt lent smiles to lead ACLU attorney Benjamin Wizner and watched argument sitting in front of the partition, on the plaintiffs’ side (Reinhardt’s wife, Ramona Ripston, heads the ACLU’s Los Angeles branch).

This was discussed on Twitter earlier today by Dan Levine, who wrote:

During state secrets args, Reinhardt wasn’t on the panel, but he deliberately sat next to ACLU’s counsel table.

I don’t know whether Levine wrote the linked article. I have written the reader to ask. [UPDATE: Yes, it’s by Levine.]

What do legal ethicists think of this? I might write one or two to ask.

27 Responses to “Reinhardt Takes Sides . . . Literally”

  1. What else would you expect from the scumbag?

    Ken in Camarillo (aa2192)

  2. This is pretty insane. Judges are supposed to behave in a way that doesn’t make the bench look completely whimsical.

    His efforts to sanction Cyrus had more to do with the idea that judges deserve to be treated with respect. Does he have an argument as to why? We respect judges more than lawyers because they are supposed to apply situations to law as a vital aspect of our system working the way the people want. You don’t get to be an advocate and a judge at the same time.

    Dustin (44f8cb)

  3. It’s very selfless to be passionate enough about the law to be a good enough lawyer to become a prominent judge, and then set aside your preference about clients and outcomes and simply do what the law provides.

    It’s very selfish to set aside what the law provides in order to ensure your personal preferences are the outcome. No one’s perfect… it probably happens to most judges a couple of times. And sometimes egregiously that their judgment is reversed. But in this guy’s case, it’s simply 100% consistency. And now he’s using his stature to support one side of a case supported by a pet organization.

    He should run for office or join the ACLU where he belongs, next to killers appealing their death sentences.

    Dustin (44f8cb)

  4. Basically, Reinhardt was laughing at Cyrus, Dustin. Their whatever judicial council disciplinary proceedings are meaningless because they’re unconstitutional. Federal judges can only be meaningfully disciplined by impeachment. Everything else is a fraud to fool the public.

    nk (df76d4)

  5. nk, that’s a damn good point. I actually take that stupid shit seriously.

    Dustin (44f8cb)

  6. The audacity of slime.

    Alta Bob (e8af2b)

  7. There have been only seven impeachment convictions of federal judges by the U.S. Senate since 1789, including three during the 1980s.

    The Constitution says: “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior….” Thus, bad behavior by a federal judge is grounds for impeachment. I think Congress ought to codify what misconduct amounts to bad behavior by a judge. It’s hard to believe that only seven federal judges in U.S. history have lapsed into bad behavior.

    Andrew (59b742)

  8. #7: you’re asking Congress to quantify what acts qualify as “bad behavior”????

    can i have some of whatever it is you’re on? that’s some killer shit…… %-)

    redc1c4 (fb8750)

  9. I think Congress ought to codify what misconduct amounts to bad behavior by a judge

    Having Congress determine what constitutes “bad behavior” is somewhat like having a group of skunks decide what constitutes “a bad stench.”

    JVW (0fe413)

  10. True, which would ensure that only the very stinkiest judges get the boot.

    Andrew (59b742)

  11. I was thinking more along the lines that they wouldn’t be able to recognize bad behavior or stink, no matter how obvious it appeared to us.

    JVW (0fe413)

  12. Does Reinhardt recuse himself on ACLU cases?

    Ira (28a423)

  13. I think Congress ought to codify what misconduct amounts to bad behavior by a judge.

    That Congress you refer to; is that the Congress in which sits Alcee Hastings, one of the seven to be impeached ?

    Good luck. Maybe he could write the bill.

    Mike K (2cf494)

  14. Substance: Judge Reinhardt may not have been on the panel, and may not have been selected for the en banc court. (The Ninth Circuit’s version of “en banc” is a bad joke, imho, since it’s not the whole court, contrary to every other circuit, including the Old Fifth when it had 26 active judges and they all did just fine with en banc cases). But I presume that he, like every other judge on the Ninth Circuit, had a chance to make his views known in private correspondence to the other members of the Ninth Circuit. Him showing up for and then sitting next to his preferred winning side at the en banc argument, then, likely at most communicates the same views publicly as he’s already communicated privately. To whatever extent Judge Reinhardt has any powers of influence or persuasion over the members on this particular en banc court, in other words, those powers are unlikely to be either improved or lessened by his stunt at the argument.

    Appearance: Advocacy by appellate judges is traditionally expressed in public only through competing written opinions — majority, concurring, and dissenting. In private, it occurs mostly behind closed doors among the judges themselves. (Judges rarely argue with each other during oral argument.) So when a judge becomes a public cheerleader for one side or the other, there is a natural and unavoidable public perception created to the effect that that judge is more personally involved, and less professionally dispassionate, than he/she normally would be. That in turn creates the perception of more personal involvement than there ought to be. Cheerleading thus diminishes public trust and confidence in the judiciary.

    Under Canon 2A of the Code of Conduct for United States Judges, Judge Reinhardt “should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” By becoming a public cheerleader for one side, he’s violated that duty.

    Beldar (346ea8)

  15. On second thought: His wife’s involvement probably caused (and certainly should have caused) Reinhardt to recuse himself, in which event he couldn’t properly have communicated privately with other Ninth Circuit judges during the run-up to the vote on en banc consideration. (I haven’t checked the announcement of the en banc vote to see whether there’s a note of him recusing himself.) So this is a case in which he ought to have had no influence — no voice at all — which might affect the votes of the other judges.

    And his wife’s ties, and his likely resulting recusal, make it all the more obvious that he ought not be cheerleading.

    Beldar (346ea8)

  16. Bad Judge! Bad, Bad Judge!!! Liberal Hack violates ethical rules of impartiality. Impeach his ass!

    All these flagrant liberal hack judges need to be Impeached! They have gotten away with their bullshit for far, far too long now. It is time someone started calling them out on their shit and held them accountable!

    Impeach, Impeach, Impeach!

    [note: released from moderation filter. –Stashiu]

    J. Raymond Wright (d83ab3)

  17. Since Judge Reinhardt failed to conduct himself “in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” It was up to the judges on the bench to instruct Reinhardt to remove himself from plaintiff’s side.

    ropelight (51072e)

  18. The full article appears here:
    http://www.law.com/jsp/article.jsp?id=1202436372269

    No need to subscribe.

    Audacity (2fd5ad)

  19. Imagine a judge whose behavior is so putrid that even members of congress notice it. That would be a working standard.

    BarSinister (9a86c3)

  20. I’ve confirmed that Judge Reinhardt did not participate in the vote to rehear the case en banc.

    Beldar (346ea8)

  21. mmm, and you know, personally when someone tries to influence me that way, if anything, it backfires. it makes me think “if their position was so solid, then surely they wouldn’t need to do this sort of thing.”

    A.W. (e7d72e)

  22. I’d also expect the LA Times to ignore it. Let’s see if the Daily Journal or Met News does also.

    Alta Bob (5daf3f)

  23. Is Reinhardt planning to run for governor? Newsom dropped out, right? Seriously, might Reinhardt thinks the race for the Dem nomination is one that he can win? Who else is running? Moonbeam?

    I’m a Canuck so I don’t follow the CA races as closely as a lot of you guys do, but is it a possibility? Or is it too late?

    ras (1d003b)

  24. I’m going to presume this was in San Francisco.

    If so, the en banc courtroom doesn’t accomodate a large number of spectators.

    I wouldn’t expect a Judge with chambers in the Courthouse to come early to reserve a seat for himself. The one place where seats are always available is in front of the partition.

    Who is going to tell an Appeals Court Judge where he can sit?

    Was it happenstance he chose the ACLU side? Of course not.

    But so what? This is meaningless.

    And, I expect Rawlinson to side with the conservatives — the case is then up to Fisher, and he’ll cave in to maintain his place on the court with the liberals.

    Then the Supreme Court will reverse them.

    WLS Shipwrecked (3d3fb8)

  25. As WLS Shipwrecked pointed out, assuming this was in the 9th circuit building in San Francisco, that’s a pretty small courtroom (I’ve watched oral arguments there). It may very well be that he sat where he did because that as the available place to sit.

    That said, it seems to me that the appropriate thing for Judge Reinhardt to have done was to not attend the hearing. If he’s recused from the case, he’s recused from the case, and should do the best job he can at refraining from expressing an opinion on the matter at all.

    aphrael (e0cdc9)

  26. I’d love to know if wls is right that this man had nowhere else to sit, or even just a limited selection.

    Still, his presence was a message, whether he wanted it to be or not. He’s a prominent jurist who already loves to insert his political view on capital punishment in place of the law. Should he be thrown off the bench for sitting next to his wife? I don’t think so. Should it be made clear that he’s not a politician and his personal views on what he wantsd to change the law to are not allowed to infect his rulings? Yeah. People should see this man as extremely selfish for how he behaves, even if there’s no reasonable disciplinary result in every instance.

    Dustin (44f8cb)

  27. Judge Reinhardt is on the record in holding that an appellate judge can publicly advocate for one side on a case pending before the Ninth Circuit. What’s hilarious, of course, is that you, Patterico, were positively gleeful in posting a link to Judge Reinhardt’s opinion endorsing this practice when it supported judicial corruption; now that he is doing the same thing for a cause you disagree with, you condemn it.

    Cyrus Sanai (311cd8)


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