Posted on 02/03/2003 8:34:25 PM PST by Sandy
The Last Liberal
Judge Stephen R. Reinhardt may be out of step with the times. And that's just fine with him.
By Bill Blum
On a weekend following the release of last year's pledge of allegiance ruling by the Ninth U.S. Circuit Court of Appeals, protesters picketed the home of circuit judge Stephen R. Reinhardt in Marina del Rey. Overhead, a small plane buzzed the adjacent beach, trailing a banner with the words One nation under God-a deliberate reference to the two-word phrase under God, added to the pledge in 1954, that the court had found unconstitutional.
No matter that Reinhardt had only concurred in the court's ruling, written by Judge Alfred T. Goodwin for a three-judge panel. Newdow v U.S. Congress (9th Cir 2002) 292 F3d 597, stay granted 2002 US App Lexis 12826. Conservative radio host Rush Limbaugh immediately fingered Reinhardt as the court's unquestioned "ringleader." Referring to Reinhardt and his spouse, Ramona Ripston, executive director of the ACLU of Southern California, Limbaugh bellowed, "All they do is sit around and come up with ways to corrupt the country. They're just a bunch of left-leaning commie socialists." In the weeks that followed, congressional representatives from Montana and Idaho-bedrock Republican states-made reference to Newdow in reiterating proposals to split the Ninth Circuit.
Seated behind an oversize desk in his downtown Los Angeles office, Reinhardt responds to questions about his notoriety with a wan smile. "It's nice to feel that you've accomplished something, to find that zealots are upset with what you're doing," he says. "Sometimes you write opinions, and you wonder whether anyone reads them."
It's apparent that Reinhardt relishes the intellectual combat that comes with his black robes. In the days following release of the Newdow ruling, he reportedly circulated a memo among his colleagues disagreeing with Judge Goodwin's decision to stay the opinion pending en banc review. The court, he cautioned, should not yield to public pressure. "It's important to understand what people think and what's going on in society," he says, avoiding direct comment on the memo. "But that shouldn't influence you. If the Constitution says something's wrong, you can't pretend that it doesn't. You say what the Constitution means, and that's all you can do. I would hope that any judge would do the same."
Few judges, however, make decisions that stick in the public's craw quite like Reinhardt, whether it's affirming a constitutional right to assisted suicide, reversing a death sentence for ineffective assistance of counsel, or arguing that the Unabomber should be granted a new trial. (See sidebar, "Reinhardt's Greatest Hits," on page 20.) In early December he challenged Attorney General John Ashcroft with a 72-page majority opinion rejecting the Justice Department's recent declaration that the Second Amendment gives individuals the right to own guns. Silveira v Lockyer, 2002 US App Lexis 24612.
Reinhardt readily admits that he arrived at his swearing-in ceremony with his politics firmly in place. "I was a liberal from a very young age," he says. "I think I was born that way." Indeed, the life decisions that mark his career are remarkably consistent-which helps explain his judicial predictability. As fellow circuit judge Stephen S. Trott says, Reinhardt has "flown the liberal flag as high as anyone could."
But classic liberalism is in decline nearly everywhere-certainly in Congress and at the U.S. Supreme Court. On a single day in early November, for instance, the Supreme Court unanimously and summarily reversed Ninth Circuit rulings in three separate cases without briefing or oral arguments on the merits. Although the circuit's reversal rate is often exaggerated, its reputation for liberal decisions-and Reinhardt's influence among his judicial colleagues-is well deserved. Even some of Reinhardt's admirers see him as something of a throwback to a bygone era of judicial activism. Michael Dorf, one of his former clerks and now a professor at Columbia University School of Law, calls Reinhardt the "chief justice of the Warren Court in exile." The description captures his spirit as well as his remarkable staying power.
Still, the job has taken its toll on the 71-year-old Reinhardt. He had a triple bypass operation in 1982 and another heart bypass in the spring of 2001. His stooped shoulders and puffy eyes suggest a man in need of a long vacation more than the leader of a movement to undermine the popular will. "It's very hard work, and it's sometimes frustrating," he says of his 60- to 80-hour workweeks, depending on whether he's on calendar or writing memos and opinions. "But I don't have plans to do anything else." Besides, he says, the Bush administration's war on terrorism promises to present new challenges to the judiciary that will make the pledge of allegiance case seem like "news on a dull summer day."
Stephen Reinhardt was born Stephen Shapiro in New York City in 1931. At age twelve he took the name of his stepfather, movie director and producer Gottfried Reinhardt. Gottfried, son of celebrated German film and theater impresario Max Reinhardt, became a mainstay of the Hollywood elite from the postwar years into the 1950s.
The young Reinhardt attended boarding school in New York but spent summers with his parents in Westwood and Bel Air. Through them he was exposed to a world of privilege, celebrity, and free thought. It was not uncommon for him to have dinner with émigré writers such as Christopher Isherwood or film stars such as Ava Gardner. "I used to play poker with John Huston and Audie Murphy while they were making The Red Badge of Courage," Reinhardt recalls. He once asked Marilyn Monroe for a date-a request, he says, that she deferred.
Although Reinhardt considered following his stepfather's career, he doubted his abilities and worried about the notorious insecurity of Hollywood careers. Show business, Reinhardt says, "was a very tough life-one year you could be the most important person in the industry, and the next year you'd be out of a job. It wasn't my kind of thing."
After graduating from University High School in Los Angeles, Reinhardt enrolled at Pomona College, majoring in government and participating in the emerging Democratic Party club movement. There he had an early clash with authority on what he regarded as a matter of principle. "I had noticed that there was only one black student in the school-and he was from Africa," Reinhardt says. During Reinhardt's second year, he sought out the dean of admissions and asked him why. "The dean replied that they accepted only the most qualified applicants," Reinhardt recalls. "I said, 'In this whole country there must be blacks who are smart enough to go to this school-it's not that special.' " The dean suggested that if Reinhardt didn't like Pomona, he could apply elsewhere. He considered transferring to Stanford but instead took extra course work that enabled him to graduate in three years.
Reinhardt encountered prejudice himself in the form of anti-Semitism. While still at boarding school, he recalls traveling as a member of the fencing team to face the freshman squad at Yale University. "One of the guys on the Yale team yelled out, 'We're going to kill the kikes!' Nobody said anything to him or even thought there was anything peculiar about it. Attitudes were like that in those days. Yale had almost no Jews."
Reinhardt was so put off by the experience that after graduation from Pomona he had to be convinced by a Democratic Party activist to even apply to Yale Law School. But he did, was accepted, and found when he attended that attitudes at the law school were different from the rest of the university. He encountered some of the seminal figures in constitutional law at Yale, receiving what he termed "a broad view of the law." He graduated in 1954.
Following a two-year hitch in the Air Force at the legal counsel's office in Washington, D.C., Reinhardt clerked for district judge Luther Youngdahl, a former governor of Minnesota. Before applying to Wall Street firms, Reinhardt says he returned to Los Angeles in 1957 for a family visit. There he reluctantly agreed to go to job interviews that his stepfather's friend, attorney Martin Gang, had arranged for him at Gibson, Dunn & Crutcher and O'Melveny & Myers.
Reinhardt recalls that the encounter at Gibson Dunn was "miserable." The meeting occurred on the day President Eisenhower sent federal troops into Little Rock, Arkansas, to protect black youths from demonstrators trying to prevent them from entering the public high school. "I talked about what a wonderful thing it was that the president would send in the troops," Reinhardt says. He also let the senior partners know that he was Jewish. "They said, 'That's not a problem. O'Melveny, across the street, doesn't hire Jews, but they hire women. We don't hire women, but we hire Jews.' " Reinhardt maintains that neither statement was true. After an office lunch, the partners strongly hinted that he would be uncomfortable with the firm's Republican politics.
The O'Melveny interview went much better. "Warren Christopher had just started there-he was the first real Democrat in the firm," Reinhardt says. "Christopher was recruiting other young Democrats, and the firm offered me a job." After a brief return to New York, Reinhardt accepted, becoming only the second Jewish attorney at O'Melveny, where he practiced entertainment law.
"About eight or nine years later, I found out that Martin Gang was head of the antidefamation league, which had formed a committee to integrate the downtown firms and the entertainment business," Reinhardt says. Gang's committee, according to Reinhardt, had told O'Melveny that if the firm didn't hire Jews, it would lose its entertainment clients. "No one ever told me I was the guinea pig in the deal," he says.
Just how much his Jewish heritage has shaped Reinhardt's legal philosophy isn't clear, even to him. "Being Jewish in New York, you were sort of automatically liberal," he says. "But we were never religious. Maybe I would have had the same basic attitudes if I hadn't been Jewish. How do you know what you'd be like if you didn't grow up the way you did?"
His wife, Ramona, who met Reinhardt at a Constitutional Rights Foundation dinner in the mid-1980s, won't speculate either. "He grew up as an only child," she says. "Both his parents were liberal and talked about current events at the dinner table. But he was never bar mitzvahed, and being Jewish wasn't a big part of his family life. I don't know how he got to be the man he is." The two married in 1991-each had had previous marriages.
Others who know Reinhardt well see a stronger connection between his Jewish heritage and his view of the law. "This isn't a man who goes around quoting the Talmud," says Daniel Sokatch, Reinhardt's son-in-law and the executive director of the Progressive Jewish Alliance in Los Angeles. "But Jewish ethics, culture, and history are very much a part of his makeup as a judge and as a human being. He knows what it's like to be a persecuted minority."
Judge Alex Kozinski, Reinhardt's friend and ideological rival on the Ninth Circuit, concurs that Reinhardt "is definitely a product of his Jewish, Eastern liberal roots." Kozinski, himself a Jewish émigré from Romania, makes half a dozen speaking appearances a year with Reinhardt. "He's very gregarious but always has something about conservatives or Republicans to criticize in a very East Coast way," Kozinski says. "It's conceivable that if he had grown up in a Republican household, he'd be the same guy, but I doubt it."
Trying to explain his odd-couple friendship with Reinhardt, Kozinski says, "We're both secular Jews who grew up in different parts of the world. The fact that he's really smart is a big plus for me. I understand where he's coming from, although he doesn't always understand where I'm coming from. He seems surprised to find a smart Jew who isn't a liberal."
Reinhardt, speaking of Kozinski, also emphasizes the intellectual give-and-take between them. "We enjoy the battle," he says. "More than a lot of people, Kozinski is willing to engage in public discussion. He's a libertarian as much as he is conservative-there are issues where we agree. And he doesn't take himself too seriously."
After just two years at O'Melveny, Reinhardt's thirst for new challenges and political engagement led him to a small activist firm in Los Angeles that became Fogel, Julber, Reinhardt, Rothschild & Feldman. Finally in charge of his own caseload, Reinhardt specialized in labor law, representing a variety of trade unions. In the late 1960s he represented striking workers in a protracted dispute with the Los Angeles Herald Examiner. For Reinhardt, choosing sides in employment disputes was easy: "The unions were the good guys," he says.
While in private practice, Reinhardt served as a member of the Democratic National Committee and acted as an unpaid campaign advisor to both former Los Angeles mayor Tom Bradley and former governor Jerry Brown. In 1974 Reinhardt played an important role in Brown's gubernatorial primary victory over San Francisco Mayor Joseph Alioto, persuading organized labor-which Alioto had considered to be firmly in his camp-to endorse both candidates.
In 1975 Reinhardt joined the Los Angeles Police Commission, which he presided over from 1978 until his judicial confirmation in 1980. During his tenure on the commission, the Los Angeles Police Department (LAPD) came under intense criticism from the ACLU and other organizations for its political-intelligence activities. The commission eventually ordered the LAPD to destroy thousands of files on left-wing and progressive activists-a purge that then-police chief Daryl Gates promptly halted. As tensions mounted, the ACLU and other groups filed several lawsuits seeking to curb further police spying. "We were limiting the right of the intelligence community to collect information, and they didn't like it," Reinhardt says. "They thought we were a lot of communists out to stop the police from finding crooks."
More than 20 years after the events, Gates is still steaming. "Reinhardt was a pain in the butt on the police commission," Gates says. "He was always coming in with contrary views. Running a police department is complicated enough; he'd often complicate things even more. The Reinhardt Commission was the beginning of the end for the LAPD. The liberals began to take over after that."
In December 1979 the Carter administration nominated Reinhardt-despite his lack of judicial experience-to the Ninth Circuit. Critics immediately attacked Reinhardt's outspoken support for police reform and his representation of trade unions. Then early in 1980 an FBI informant accused him of participating in a kickback scheme aimed at funneling money from the Culinary Workers Union to liberal candidates such as Jerry Brown. The allegation became a factor in Reinhardt's confirmation hearing before the Senate Judiciary Committee in May 1980.
According to Reinhardt, the informant changed his story several times, at one point accusing him of delivering a suitcase to Brown filled with $1,000-dollar bills. "He was a really sleazy character who had been convicted and sent to prison for a phony insurance deal," Reinhardt says. "When he got out, the FBI used him to set people up and testify against them. Either he was told by the FBI to [concoct a story], or he thought the FBI wanted him to do it."
Only two senators actually attended the confirmation hearing-Orrin Hatch (R-Utah) and Howell Heflin (D-Alabama), who presided. The session consisted largely of testimony from a former Los Angeles policeman who had been hired as executive director of the Law and Order Campaign Committee in Citrus Heights. The witness, Reinhardt says, "told the committee about how I had destroyed the intelligence units of the LAPD and how they couldn't function anymore."
Reinhardt denied the witness's allegations. "Orrin Hatch asked just two questions," Reinhardt recalls. "He wanted to know if I was listed in Martindale-Hubbell, and he wanted to know my Martindale rating. Then, he said, 'I want this nomination held for investigation of corruption.' "
Reinhardt says it was more than touch-and-go after that. "If I'd known how the confirmation battle would come out, it would have been fun," he says. "But not knowing was very, very nerve-wracking. The problem with something like [the accusations against me] is that there's no way to get out of it. Because if you withdraw, then everybody thinks you're corrupt. So you have to go through with it."
Ironically, Reinhardt received strong support during the ensuing probe from Gates. Senate staffers, Gates says, had called to ask if the LAPD would investigate the corruption charges. "We looked into the allegations in great depth," Gates says, "and found that Reinhardt had not done anything inappropriate. I told the Senate Committee that we found nothing that would prohibit him from becoming a federal judge." By late June 1980 the Judiciary Committee voted 11 to 2 to confirm Reinhardt. Only Hatch and Strom Thurmond (R-South Carolina) opposed the nomination.
Reinhardt made an immediate impression on his colleagues. "He's as focused as anyone I've ever worked with," says Judge Trott, noting Reinhardt's eagerness to debate all comers. "You will get called on the carpet if you disagree with him on a panel, and it will take your best arguments to stand up to him. He's open-minded until he decides an issue. Once he decides, the steel curtain comes down."
Attorneys in oral argument are even more exposed to Reinhardt's confrontational style. "He can be a little short-tempered with attorneys in oral argument," says former clerk Dorf. "He doesn't suffer fools gladly." Dorf also notes that while his former boss was great to work for, he was a tough taskmaster. "If you work on something going out of his chambers, you work on six, seven, eight drafts before it's ready," Dorf says. "He wants to make sure every word is exactly right."
Reinhardt's intensity, however, sometimes proves counterproductive. "He's not a 'tactical' jurist," Dorf says, suggesting that in the pledge of allegiance case another panel might have fudged the language of the opinion or ruled on technical grounds to avoid provoking a backlash. "Reinhardt doesn't do that," Dorf says. "There's a refreshing honesty about his approach."
Reinhardt is "as hardworking now as he was when I met him," says Ripston, a nonlawyer who was appointed a public member of the Commission on Judicial Performance in 1998. The couple tread a narrow line professionally. She says they never discuss Reinhardt's pending cases, and Reinhardt never hears Southern California ACLU matters. But she acknowledges that the two regularly debate policy questions at home. "Before we bought a treadmill, we would walk on the beach every morning, holding hands and arguing," she says.
Perhaps because of Reinhardt's uncompromising attitude on constitutional matters, Ripston says he "feels disappointed when he has to write a dissent. He puts in so much time that I say to him, 'The dissents of today will be the decisions of tomorrow.' For the most part, however, he's incredibly upbeat-even when I feel depressed about things in America."
Reinhardt definitely has a lighter side, although his sense of humor is often politically tinged and biting. At the Ninth Circuit's Sun Valley conference early in the 2000 presidential campaign, for instance, he wore a button with the slogan, "It's the Supreme Court, Stupid." The button was such a hit that at least two of his colleagues-Trott and Charles Breyer-borrowed it during the meeting.
For Reinhardt's critics, that button speaks volumes about what they perceive as his personal feud with U.S. Supreme Court Chief Justice William H. Rehnquist. Opinions about the rivalry generally divide along party lines. "Reinhardt is clearly among the most liberal activist judges in the nation," charges Chapman University law professor John Eastman, who also serves as director of the Claremont Institute's Center for Constitutional Jurisprudence. "Quite often he reaches conclusions about the Constitution that are contrary to the text of the document, as well as to Supreme Court precedent."
Douglas Kmiec, dean of The Catholic University of America School of Law in Washington, D.C., adds, "Reinhardt feels strongly that the law ought to accommodate areas of policy that he wants to develop. He can't help but know that he's pushing the envelope with his expansive reading of federal statutes and the Constitution. If he doesn't know it when he's writing his opinions, he finds out when the Supreme Court reverses them."
During the past six terms of the U.S. Supreme Court, the Ninth Circuit has been reversed on 80 to 90 percent of the cases reviewed-easily the highest reversal rate among the federal circuits. According to statistics compiled by the University of Oregon Law Review, the Court reversed the Ninth Circuit in 27 of the 28 cases it reviewed during the 1996-97 term. Reinhardt was a panel member in 13 of those 28 cases. Ten of the 13 were reversed unanimously, including 5 Reinhardt opinions. In the two most recent Supreme Court terms, however, the Ninth Circuit's reversal rate was closer to the 73 percent average for all lower federal and state courts.
Reinhardt insists that his detractors have it all wrong. "The fact that a court is reversed doesn't mean that it's wrong or that it didn't follow the law," he contends. "The Supreme Court changes the law regularly. And this Supreme Court-which is the most activist Court there has ever been-is constantly changing the law. So if you really are faithful to the law, you're likely to get reversed because it [the Court] has cut back on rights."
Reinhardt also denies feeling personally slighted when his opinions are reversed. "I feel strongly about the law," he says. "I'm always sorry to see a bad Supreme Court decision, but it doesn't matter whether it's my case or somebody else's that gets overturned."
Judge Kozinski observes that Reinhardt "has a point of view that probably is not shared by any of the sitting justices on the Supreme Court. He believes that government should bring fairness into people's lives, and he believes judges should be part of that process." Nonetheless, Kozinski says, Reinhardt is no judicial scofflaw. "He takes the position that if an issue is directly controlled by a Supreme Court decision, he'll follow it. But where there's room for maneuvering, he'll decide cases as he sees fit."
When asked if he has ever aspired to a seat on the U.S. Supreme Court, Reinhardt responds abruptly, "Absolutely not." A long moment passes before he qualifies his answer. "Would any judge enjoy the job? I would think so. But it never seemed to be a possibility for me. I haven't been around while there was a president who was interested in appointing liberals to the Supreme Court."
Sounding like a judge scorned, Reinhardt launches into an attack on the Clinton administration's record on judicial appointments. "Clinton's view was that judicial appointments were a nuisance, and he didn't want to spend any political capital on them. If any potential nominee was controversial, he'd say it wasn't worth the fight. One of Clinton's legacies is that there are few [young] liberal judges anywhere."
In his role as lonely liberal, Reinhardt carries the torch in lecture halls as well as in published opinions. "The Rehnquist Court," he says, echoing speeches he's delivered recently at Harvard University, New York University, and Golden Gate University law schools, "sees the Constitution narrowly as a way to limit the power of the federal government and to preserve states' rights over the rights of people. It's the sort of thing we thought ended with the Civil War." Reinhardt also has criticized the federal court system as a "bastion of white power" because of the paucity of black and minority judges.
Though Reinhardt's critics object to these speaking tours almost as much as they do to his decisions, Professor Laurence H. Tribe of Harvard Law School credits him for "blazing a trail of candor and openness in a profession that used to be very closemouthed. In terms of sheer talent and ability-whether you agree or disagree with him-he's in the top rank of federal appellate judges."
Reinhardt himself insists that his liberal philosophy is not a relic of the past. "My theory about life," he says, "is that we live in an evolutionary world-society progresses gradually toward enlightenment. But it doesn't necessarily move in a steady line. There are up periods and down periods. The fact that we're in a down period at the moment doesn't mean that progress has stopped."
Bill Blum is a Los Angeles-based administrative law judge and freelance writer.
In case anyone wonders how judge Bill Blum views RKBA ... What about the 150 years precedent, prior to 1934? And what of that "inalienable rights" things, where the Bill of Rights grants nothing, but merely recognizes pre-existing rights, inherent to human beings?
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