Judge Reinhardt interviewed

Stephen Reinhardt is the judge on the 9th U.S. Circuit Court of Appeals who the left likes most and the right most despises. He is married to the former ACLU director in Los Angeles, Ramona Ripston, and shows up at Arianna Huffington's soirees and other Westside liberal salons. He calls himself one of the few liberal judges left on the federal bench.

Reinhardt speaks his mind on the death penalty, liberals and conservatives in an interview posted today at How Appealing, a legal blog run out of Philadelphia by lawyer Howard Bashman (who incidentally opens his own law practice today).

Excerpts:

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...?
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....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...

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...

Conservative politicians eager to pack the courts with right-wing ideologues, and some of their camp's 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...

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...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...Liberalism is still a part, a critical part, of the American mainstream; those who reject fundamental constitutional principles, such as judicial review, are not.

Reinhardt also explains why he has never upheld a death sentence (although he has allowed executions to go forward).