6/14/03

The Honorable Alex Kozinski
The Honorable Stephen Reinhardt

Justices, United States Court of Appeals for the Ninth Circuit

Episode #305 Transcript

The following is an edited version of Justice Kozinski and Justice Reinhardt's remarks at the Town Hall Los Angeles luncheon on May 6, 2003.

Introduction

Val Zavala: Hello, I'm Val Zavala. Welcome to Life and Times at Town Hall. Today's forum features two of our country's hardest-working judges, The Honorable Alex Kozinski, a conservative, and The Honorable Stephen Reinhardt, a liberal. Both men serve on the U.S. Court of Appeals for the Ninth Circuit based in San Francisco and both have the reputation of being brilliant, outspoken and passionate constitutionalists.

Judge Alex Kozinski was born in Bucharest, Rumania. At the age of thirty-five, Judge Kozinski was appointed by President Reagan, becoming the youngest federal appellate judge in the twentieth century. A leading conservative, he has been called unpredictable and has a keen sense of humor.

Judge Stephen Reinhardt represents the other end of the ideological spectrum. Appointed by President Jimmy Carter, he is deemed one of the most liberal activists and understands the need for balance within the justice system.

Today both judges have a chance to go face to face with their interpretation of the law. Mary Maroney Krinski moderates.

Liberal vs. Conservative Views from the United States Court of Appeals

Moderator: Both of you represent the opposite political bookends of the largest appellate court in the country, but also one that has been labeled the most liberal court in the country and one of the most controversial courts in the country. So let me perhaps start with you, Judge Reinhardt. Does the Ninth Circuit deserve that reputation?

Judge Stephen Reinhardt: I wish it did. Being called the most liberal court in the country just tells you what's happened to liberalism in the last few years. What they mean when they say we're the most liberal is that this court, unlike most of the circuit courts, isn't totally dominated by a group of conservative judges who have a view of the Constitution that is, to put it mildly, rather narrow and tends to resemble the view of the federal courts before the age of enlightenment (laughter). The reason we're considered liberal is that there is a rather even balance in the court between conservatives on one side and moderates and a few liberals on the other.

It's sort of what you would have called, prior to the Reagan-Bush years, a moderate middle-of-the-road court. But by comparison to the courts like the Fourth Circuit and the Eleventh Circuit, we appear to be liberal, but in truth, it's a rather traditional middle-of-the-road court as a whole, as an institution. There are individual judges who are quite conservative, some who are quite liberal, but we have opinions that really reflect the whole range of views and we have as many strong conservative opinions coming out of our court as liberal opinions. It's just that some of the opinions which try to protect Constitutional rights and civil rights seem so unusual after you read Supreme Court opinions that it seems somewhat different than the main flow of conservatism that we see dominating the judicial system today.

Judge Alex Kozinski: I think, to some extent, Judge Reinhardt is right. There is always sort of a kernel of truth in everything he says (laughter) and then he goes way off the information. It is true that the Ninth Circuit reputation as a liberal court is a little bit dated. It dates back to the 1970's, the late 1970's, when President Jimmy Carter appointed to the Ninth Circuit ten of the most liberal activist judges the world has ever known. I say that with affection and respect (laughter), including my good friend, Judge Reinhardt.

Those were judges. I mean, he will tell you. Those were real judges who really believed that the Constitution is whatever the judges say it is. If they liked the right, by God, they'd build, you know, all sorts of case law to support it. But if they don't like the right, let's say, the Second Amendment, then it doesn't exist. That was their view of what judges' roles are and that prevailed until about the mid-1980's when President Reagan and then President Bush, the senior, started appointed judges to the court. The judges appointed by President Reagan and the first President Bush were quite a bit more conservative and that pulled the court, as Judge Reinhardt recognizes, to the center.

What happened next is really quite remarkable and I think it's worth remembering. We then got thirteen judges appointed by President Clinton. I must say, and I think Judge Reinhardt and I will not disagree about those judges, I think are remarkably fine jurists, many of them quite middle-of-the-road, many of them moderate, some quite conservative, and a small handful of liberals, but all of them just excellent, superb jurists in my view.

But in any event, the result of this has been that we still have the reputation of being a liberal court and probably because judges like Judge Reinhardt and a number of other judges appointed by President Carter still continue to be active and still take a highly activist liberal view. But there is now quite a bit of law going the other way and quite a few judges on our court, both the Reagan-Bush appointees and the Clinton appointees, who are really quite strongly and I would say activist conservative.

Judge Stephen Reinhardt: Well, I could point out that this word "activist", if you wanted a court described as activist, the most activist court in the history of the United States is the present Supreme Court. It's a court that has invalidated more statutes in a few years than were invalidated in the prior fifty years. It's a court that cuts a wide swath through all branches of government and believes that it knows far better than Congress or the Executive Branch what this country should be like. It's the only court that ever would have selected the President of the United States for us without regard to legal precedence or the Constitution. So if you want an activist court, don't talk about the Ninth Circuit. If you look for activism these days, it's on the right.

Judge Alex Kozinski: You know, I think Judge Reinhardt has a good point and this I'm going to have to agree with him, at least in part. Activism is a term most often associated with liberals, but is not owned by the liberals. What's happened -- and this is an important stage in the development of our jurisprudence -- liberals captured the term in the 1950's. After Brown vs. Board of Education, there was a great outpouring of the Supreme Court of what we call liberal activist decisions and they loved it. I mean, the liberals just thought it was great and they thought they owned the term. You know, activism can only go one way. Well, it turns out that conservatism is just as smart and you can be just as good being an activist being a conservative. So I think, in this regard, Judge Reinhardt is right. Activism is not a term or a concept that's owned by either side. I think both conservatives and liberals can be guilty -- well, I won't say guilty -- of activism.

Moderator: There has been much said about whether a shadow has been cast on the Supreme Court as it entered into a political fray and dipped its toe into a political process, or much more than its toe, by engaging itself in deciding a presidential election. Judge Kozinski?

Judge Alex Kozinski: Oh, but that is not where it started. The toe was not dipped in Bush vs. Gore. The toe was dipped forty years earlier in Baker vs. Carr and Reynolds vs. Sims where the Supreme Court decided that it was okay for judges to get involved in the business of deciding whether elections are run properly. At that time, Justice Frankfurter, a great justice, and Justice Harlan, a very great justice, warned that if the judiciary got involved in making these kinds of decisions which are essentially political, they will eventually wind up making decisions that would be viewed as highly political and will themselves be tarred as political institutions.

It all came home to roost in 2000 in the Bush vs. Gore case. The Supreme Court had adopted this jurisprudence that dealt with equality and, if you read the Supreme Court's opinion, which in Judge Reinhardt's view, decided the election, it is nothing but a straightforward application of what the Supreme Court started forty years earlier. So I get off the bus much before Bush vs. Gore. I think the Supreme Court should get out of the business of deciding elections altogether and should repudiate Reynolds vs. Sims and Baker vs. Carr.

Judge Stephen Reinhardt: First of all, Reynolds vs. Sims and Baker vs. Carr in no way justify what the Supreme Court did in Bush vs. Gore. Judge Kozinski doesn't like courts to define constitutional rights. He considers the Warren-Brennan court a disaster to the country. That's his view of what an activist court is and that's where he says we went wrong. Well, without that, we'd all feel like segregated schools because the Warren-Brennan court found in the Constitution something that strict constructionists would not have found. They said we can't have a separate system in this country for blacks and whites.

The Warren-Brennan court said people who are accused of crime, tried and put in jail should have lawyers. That was an unknown concept to those who looked for the words in the Constitution and didn't find them. The Warren-Brennan court said, among other things, that the people should have an equal right to vote. They should be represented, that we represented people in this country, not land or cows or trees, and therefore there should be a geographic entitlement to vote.

It said nothing about deciding elections and, in fact, there are respectable conservative scholars who do not try to defend Bush vs. Gore on the law. Nobody really tries to defend it on the law, even Judge Kozinski. He says, well, they get the law wrong, so we have the opportunity to shove it back at them. But he won't tell you that the decision was correct under the law and neither will any other conservative scholar.

The closest anyone has ever come to saying Bush vs. Gore was a legitimate decision is Judge Posner, who will write on any subject at all (laughter), and Judge Posner said it was necessary for the Supreme Court to fall on the sword to save the country from chaos, the Supreme Court sacrificed itself and they ought to be thanked for the sacrifice they made. Well, Judge Posner forgot that we had a Constitution and laws that took care of that problem and there was no need for the Supreme Court to decide elections. We have voters for that.

Moderator: Well, let me focus for a moment on the judicial confirmation process that was touched upon. It's no secret that that has become any increasingly contentious and hostile process. Is that confirmation procedure broken or is it working the way it's supposed to be working with simply whomever happens to have political power at the moment exercising it?

Judge Alex Kozinski: You know, I'm not a constitutional scholar. I mean, I have to say that. I get --

Judge Stephen Reinhardt: -- I thought only I knew that (laughter).

Judge Alex Kozinski: But I learn fast (laughter). What I mean is, I am not sure I can give you a view of what the confirmation process was meant to be historically. But the reality is that the appointment of judges -- and I think if anybody believes otherwise, I think they are deluded -- the appointment process of judges is a political act. It's part of the political process and the president, in making that decision, will take into account all considerations that are relevant to that political decision. In the same way, the decision to cast the vote to confirm somebody or against somebody's confirmation is also a political act and there is no power in the world that can cause a senator to vote to confirm somebody or to cast a vote in a way that will move forward somebody's confirmation that the senator does not believe is an appropriate vote cast.

So ultimately, this is saying is there something broken or something improper or anything like that? These are sort of ploys that both sides use by pointing the finger at each other. It's really a big political fight and what's going on is that the president has a good deal of power now because he not only controls the Executive Branch, but also has a solid majority in the Senate, but not solid enough to overcome the filibuster, so there we are. I can't say the process is broken. I think it is somewhat sad that we've gotten to this point. I think that there is plenty of finger-pointing one can do as to how we got here, but I don't think that one can say the process is broken.

I think what it does point to -- and I think this is quite important -- is that the things that Judge Reinhardt talks about when he talks about how great it was in those days when judges gave people rights is that, you know, when something is or is not right or whose right is given and whose right is taken away, is a judgment call and, where one strikes the balance, there's no absolute. Where one strikes the balance depends a lot, at least the way we have constructed our jurisprudence, on the view and the philosophy of the judges who get appointed.

So given how much power judges have taken under our constitutional system, given how significant the decisions are that the judges make, up to and including deciding who will be the next president of the United States, it strikes me that it's entirely reasonable for the president to exercise his philosophy in picking judges and it's equally reasonable for the Senate to exercise its philosophy and the views of their own constituents in deciding what steps to take in confirming or not confirming.

Judge Stephen Reinhardt: I would agree basically with Judge Kozinski that it's not broken. It sometimes functions better than other times. When President Clinton was appointing judges, he did not appoint liberals to the Supreme Court. He appointed people that would be acceptable to the Republicans in the Senate and that's why he got some of his appointees nominated. But anyone who seemed to be slightly liberal would not get a hearing. President Clinton had balance because he didn't want to fight, but if you have balanced judges, you would not have the problem you're having today. There could be some conservative judges, there could be some moderate judges, but if you're determined to take over the judicial system and have only judges named who share the extreme philosophy that you want to see on the courts, then what's going on today is inevitable.

Moderator: Judge Kozinski, Judge Reinhardt, if given the opportunity, would you appoint your colleague to the Ninth Circuit today? Judge Kozinski?

Judge Alex Kozinski: You know, I wouldn't want to serve on the Ninth Circuit without Judge Reinhardt there (laughter).

Moderator: And Judge Reinhardt?

Judge Stephen Reinhardt: I wouldn't have any hesitation, but I'd make sure I appointed ten liberals at the same time (laughter).

Town Hall Los Angeles invited students from these organizations and schools to attend the speech and question the speaker afterwards.


Q: How do you feel about good citizens having guns for protection in their homes?

Judge Alex Kozinski: You're asking me? I think that good citizens should be allowed to have guns to protect themselves, to protect themselves against crime and, if it ever comes down to it and I hope it never does in this country, to protect themselves against a tyrannical government, which is what the founding fathers had in mind when they said everybody has a right to own and bear arms. They were thinking about the right to revolution, going back to the English Revolution of the 1640's, going back to the American Revolution.

Judge Stephen Reinhardt: Unlike Judge Kozinski, I don't believe that the Constitution says that individuals have a right to bear arms. The history of the Constitution showed that they were dealing with the militia when they dealt with the Second Amendment, but that's really a legal question. Your question is far more important. You don't need a constitutional right to have arms. It's a matter for society to decide is it good to have these guns around and available.

Judge Kozinski thinks it's good to have the guns because we might want a revolution. Others think it's not so good to have these guns around because they do a lot of harm. But that, to me, is not a constitutional question. If Congress decides people should have guns or the State legislature in this country, that's the right of the people to decide. It's not my job as a judge to debate that policy. That's a decision you all have to make for yourselves and it's a decision the people of this country should be allowed to make for themselves. I don't think the Constitution prohibits them from making that decision. That's the legal question.

Q: We've learned that states should have more authority in making laws according to conservatives. My question is, why don't we see more conservatives backing up California in their legalize medical marijuana?

Judge Alex Kozinski: Well, I don't know. I'm a little hard-pressed to say. I wasn't involved in the medical marijuana case and I thought conservatives should come out in favor of California. In the matter of states' rights, states decide. This was not just a question of a state decision about marijuana, but also, of course, about medical care and decisions that the state usually makes about how much latitude doctors have in prescribing treatment for their patients. I'm a little surprised that conservatives have not been too quick to see that as a state's rights issue and I think it should be.

Q: Since the U.S. is very diverse creates a problem with praising to just one God, due to the fact that every person has their own God and their own name for their God, for example, Buddha, how do you justify having the words "under God" in the Pledge of Allegiance?

Judge Stephen Reinhardt: I don't either of us is prepared to say we justify that. I mean, I was on the court that said that you can't have it in the Pledge of Allegiance. So let me just say about your question that the Supreme Court will probably decide whether you can have "under God" in the Pledge of Allegiance. But I wonder how many of you noticed in this last war how both sides in the war were claiming God was on their side? One group of soldiers would go in there to fight for God and the other group would go in to fight for Allah. You can also see the same thing on a basketball game or a football game. Each side seems to think that God is on their side.

I think you're right that this is a world and a country of diversity where we don't agree on what God is and God means something to some people and it's a word that isn't used in other religions. We shouldn't try -- if we're talking about what we should do, we shouldn't try to force any kind of uniformity on our society. Where government is involved, we should recognize the dignity of every religion and every non-religion. Whatever philosophy of religion people have, we should recognize their right to their own beliefs and respect them equally.

Q: Since cross-burning was just deemed to be not constitutionally protected speech, what implication does that have for flag-burning or other avenues of free speech?

Judge Alex Kozinski: I don't know the answer, I must tell you. It's a difficult legal question. I was surprised by the decision myself. I thought that they took sort of a turn of jurisprudence that was highly unexpected. Like a lot of the decisions that come out of the Supreme Court, or a fair number of decisions from the Supreme Court, that set no precedent value except for the specific issue. I'm hoping that this will be the cross-burning case and that it will be limited in its effect to cross-burning, which is viewed as particularly offensive, particularly a practice that raises hatred and leads to racial strife. But sometimes the Supreme Court decides cases and they're never heard from again. I'm hoping this is one of them.

Judge Stephen Reinhardt: I essentially agree with everything Judge Kozinski said. Flag-burning may limit your expression if they ban flag-burning, but there's nothing about flag-burning -- you may disagree with it politically and may be upset -- but it doesn't injure any other person when someone burns a flag. It's just something you may find a reprehensible act, but it's not an act that strikes directly at your being the way burning a cross does. So I don't think it's likely to have an effect, but I certainly don't think that it should or could be in any way a basis for a different decision in the flag-burning case.

Val Zavala: We hope you've enjoyed today's speakers. Join us next time for another edition of "Life and Times at Town Hall". I'm Val Zavala. Thanks for watching.

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