Judge shopping has roots with Reinhardt on Appeals Court

I was at a legal conference in another state the first time I heard someone repeat a quotation attributed to Judge Stephen Reinhardt, a misogynistic sexual harasser and publicity hound who served 37 years as a judge on the federal 9th Circuit Court of Appeals in California. Reinhardt, who died in 2018, assiduously built his brand as a leading judicial liberal, in the 1960s sense of liberal.

His decisions were frequently overruled by the Supreme Court. When asked how he felt about that, he supposedly replied, “They can’t overrule ’em all.” That quotation became an urban legend among lawyers, one I subsequently heard repeated many times. The Washington Examiner even attributed a version of it to him in print.

I was never convinced Reinhardt said such a thing, at least not in public, but it kept getting repeated because it so perfectly captured his approach to judging. If he defied the Supreme Court in 10 decisions, and the court overruled four, that meant he, and not the Supreme Court, had the last word 60% of the time.

He used his power as judge to advance a political agenda. In particular, he was opposed to capital punishment. If the facts of a given cases didn’t provide a reason for reversing a death sentence, he simply lied about the facts. (See Wong v. Belmontes, 558 U.S. 15 (2009).)

One way of looking at his career, the way both he and his conservative critics promoted, was “liberal.” But another, and I think more accurate, assessment can be found in an unlikely place. Yale Professor Timothy Snyder, who rose to prominence in recent years for his political commentary, is first and foremost a historian of Slavic Europe. I once read a magazine piece in which he wrote that Russian President Vladimir Putin regards the rule of law “as a joke.” In Putin’s view, according to Snyder, talk about the rule of law is never anything but a smokescreen of fine words designed to distract attention from what is really going on, which is raw power used to achieve unrelated ends.

That corrosively cynical view of the rule of law goes a long way toward describing how Judge Reinhardt conducted himself in his long career on the bench. For him, fudging the facts was no big deal because the law was a tool for pursuing political ends. In cases that raised issues he cared about, such as those involving the death penalty, he began with his conclusion and worked backward to develop a legal rationale.

An alternative judicial approach proceeds in the opposite order, identifying neutral rules that apply equally to everyone and only then turning to the facts of a given case. With this way of doing things, the conclusion comes at the end of the judicial process, not the beginning. This isn’t a naive approach to the law. On the contrary, general adherence to it in non-political cases built an institution of immense authority.

I was reminded of all this recently by news that the Judicial Conference of the United States, a policymaking body for the federal courts chaired by Chief Justice John Roberts, had adopted a new (but non-binding) policy about the assignment of cases to particular judges.

In the federal system, cases are filed in one of 94 judicial districts, which vary greatly in geographical size. (New Mexico is a single district.) Some of the big districts are divided into divisions, and some divisions have only one judge, so that any case filed in that division is automatically assigned to that particular judge.

The news in recent years has been filled with stories of various politicians rushing to particular courthouses in out-of-the-way places to file suits of political significance. The mifepristone suit came out of Amarillo, a one-judge division, for instance. The parties filing such political suits are effectively choosing their own judge. Why do they bother? It can only be because they think doing so gives them an advantage in the litigation.

The judge shoppers are making it clear they believe the shopped-for judges will be biased (in their favor). They believe the judges will be unfair (to the other side). Being fair and unbiased are the most basic of judicial duties, the ones on which everything else depends. A biased and unfair judge is a bad judge. Why don’t the shopped-for judges feel insulted by being publicly labeled bad at their jobs? If they did, the Judicial Conference wouldn’t have to step in.

My suspicion is that the shopped-for judges aren’t offended because their approach to judging is as cynical as Stephen Reinhardt’s. Like him, they start with their conclusions and work backward to develop their smokescreens of fine words.

Joel Jacobsen is an author who in 2015 retired from a 29-year legal career. If there are topics you would like to see covered in future columns, please write him at legal.column.tips@gmail.com.