Bench-Slapped! Reinhardt v. Bybee
Judge Stephen Reinhardt (left), perhaps the most prominent liberal appeals court judge in the country, is buddies with his conservative colleague on the Ninth Circuit, Judge Alex Kozinski (right). But we suspect that Judge Reinhardt feels less warmly towards Judge Jay S. Bybee (far right).
You can always count on the Ninth Circuit for a good old-fashioned judicial smackfest. And this latest one is very, very good.
Stepping into the ring are two of the Ninth Circuit's most high-profile judges. On the left: Judge Stephen Reinhardt, the court's liberal lion, who has been trading benchslaps with conservatives for decades. On the right: Judge Jay Bybee, one of the court's newer (and more conservative) members. Luckily for him, Judge Bybee was confirmed to his life-tenured post shortly before eruption of the controversy over the 2002 Bush administration "torture memo" (which he signed).
From an article by Justin Scheck of The Recorder:
In March of 2005, Reinhardt and Bybee found themselves on a three-judge panel -- together with Senior Judge Procter Hug Jr. -- that heard the case of Roger Smith. Smith claimed that his guilty plea in the murder of Emmet Konzelman was no good since his supposed accomplice Jacob Edmonds -- who pleaded guilty to a lesser charge and testified against Smith -- later recanted his testimony.In his majority opinion, Reinhardt wrote that even though Smith had not exhausted his state claims, a rarely used exception should allow his case to move forward in federal court.
Par for the Reinhardt course. How did Bybee respond?
"I disagree with nearly every word the majority has written, including 'and' and 'the.' My profound disagreement is not limited to the facts, but runs throughout the majority opinion."
Gee, Judge Bybee, tell us how you really feel!
And there's more. Check out the rest, after the jump.
Despite having signed the hard-ass "torture memo," Judge Bybee is said to be very pleasant and mild-mannered in person. But in his Smith dissent, he didn't pull any punches:
[Judge Bybee] goes on to say that "the majority infers elaborate conclusions from the tiniest scraps of evidence, building narrow platforms that it leaps between in a complex game of judicial hopscotch. It is difficult enough to trace their path; I cannot join them in it."
We never liked hopscotch much either. "Freeze tag" was way more fun.
In a footnote, though, Bybee does agree with the majority on one point -- about the given name of "Hooter" Bouse, who allegedly drove with Edmonds and Smith to the Konzelman home."There is some ambiguity in the record as to whether Mr. Bouse's first name is 'Arlen' or 'Marlin,'" he wrote. "The district and magistrate judges used the former, and the majority and the state court sentencing transcript use the latter. On this question, at least, I join the majority."
Glad to know that liberals and conservatives can find some common ground. Ain't collegiality swell?
Update: Dan Solove agrees with our characterization of this case as benchslaplicious.
9th Circuit Dissent Goes to Nth Degree [The Recorder via National Appellate Journal Blog]
Smith v. Baldwin [Ninth Circuit (PDF)]
Bench-Slapped! Reinhardt v. O'Scannlain [UTR]
Comments
Here's a link to the opinions (PDF file).
Posted by: Assistance | November 3, 2006 05:20 PM
Another 2-1 opinion written by Reinhardt... is this cert bait, or just an error that will be left alone?
Posted by: Anonymous | November 3, 2006 06:04 PM
Also, that Reinhardt-Kozinski photo looks like something out of the judicial version of the Jos A Bank catalog
Posted by: Anonymous | November 3, 2006 06:06 PM
Re: "cert bait" (great term), that may explain why Bybee's dissent is so vocal. He's basically crying out to the Supremes, "Please review this and summarily reverse!"
Posted by: Anonymous | November 3, 2006 06:15 PM
Can't we really trace this sort of intemperate jurisprudence to the vitriol-disguised-as-humor that have been part of Justice Scalia's opinions for years? Reading Bybee's opinion left me disgusted, not so much for the content (which, like the majority opinion, is debatable), but for the tone.
Posted by: Anonymous | November 3, 2006 07:48 PM
I can back blaming Scalia.
In my opinion, Scalia's vitriol is often (though not always) excused by the substance and the fact that he's right.
Lots of other judges try to imitate his style, but they fall short on the substance, so instead of looking demonstrably correct in a confident sorta way, they look like petty, elderly versions of those annoying college students who write their op-eds with the aid of a thesaurus and thing that big words and badly-implemented rhetoric add "gravitas."
See, e.g., this kid
http://www.dartblog.com/data/004642.html
Posted by: Anonymous | November 3, 2006 11:55 PM
Being a jerk to one's colleagues is nothing new...remember Justice McReynolds?
Maybe it's just that Scalia made flaunting your pathological narcissism cool again.
"The Weapon of Language":
http://samvak.tripod.com/narcissistlanguage.html
Posted by: Lucian | November 4, 2006 11:11 AM
One has to act in a judicial manner before one is entitled to the privilege of judicial civility. Reinhardt flunks that test with his lawlessness. He should've been impeached years ago.
Posted by: Anon | November 4, 2006 04:11 PM
4:11: Since when does a colleague's behavior entitle you to be a snarky, disrespectful dick in your opinions? A judge ought to respect his own office enough to treat opinion-writing as more than a vehicle for settling petty personal scores. Focus on the case and save your bombastic, ego-fueled colleague-bashing for a more appropriate forum.
Here's what Schopenhauer had to say about people who resort to the argumentum ad personam:
http://coolhaus.de/art-of-controversy/erist38.htm
Posted by: not anonymous at all, really | November 4, 2006 04:54 PM
4:54: It is not "argumentum ad personam" to criticize the lawlessness of an opponent's arguments. One might legitimately take issue with a judge's snarkiness in pointing out the failings of arguments of disingenuous brethren, but it pales before the issue of a Reinhardt's refusal to adhere to the appropriate role of the judiciary. One's a question of politeness, the other is an illegal and unconstitutional seizure of power.
Posted by: Anon 4:11 | November 5, 2006 05:55 PM
Point well taken, but any judge who's concerned about "an illegal and unconstitutional seizure of power" ought to express himself without resorting to mockery or ridicule. It's not about politeness, it's about showing respect for the institution. What's the point of adopting a frivolous tone when you're deciding matters of--quite literally--life and death?
Showboating for the peanut gallery is ugly and unprofessional. Period.
Posted by: not anonymous at all, really | November 6, 2006 04:24 AM
Again, as respect for the institution goes, Bybee's actions are a schoolboy prank compared to Reinhardt's, and it's only the misguided sense that "judicial independence" means that the legislative branch should not engage in its constitutional power to check and balance the judiciary that has kept the latter on the bench.
That said, I'm conceding perhaps too much, because as I reread the case, I see nothing objectionable or inappropriate about Bybee's dissent. It's Lat who calls it a "benchslap", but he's supposed to have a frivolous tone. The opinion itself is a model of rectitude and restraint.
Posted by: Anon 4:11 | November 6, 2006 02:04 PM
You see a "model of rectitude and restraint", I see "unchecked arrogance which dishonors the court". Eye of the beholder, I suppose. Curious, what do you think of Scalia's dissent in Lawrence?
I'm not sure I understand why Reinhardt deserves to be impeached more than anyone else who doesn't share your interpretation of the Constitution. Specific cases, please. Far too many people seem to have an "Impeach 'Em All and Let God Sort 'Em Out" mentality, so I'd be interested to hear some specific grounds for impeachment.
The real blame for the legislature failing to engage in oversight of the court lies squarely with the legislature itself. As their pathetic record on recent judicial nominations shows, Democrats and Republicans alike couldn't care less. The only reason they're ever going to step it up is if they think they can "energize the base" and squeeze some votes out of it. And God help this country when they do.
Posted by: not anonymous at all, really | November 6, 2006 03:32 PM
In matters controversial
My perception's rather fine.
I always see both points of view:
The one that's wrong and mine.
;)
Posted by: Lucian | November 6, 2006 03:39 PM
"Lawlessness of an opponent's arguments"? "Illegal and unconstitutional seizure of power"?
Hell-o! Torture memo!
Posted by: dingus2007 | November 7, 2006 01:26 AM
That's "torture memo" ... you forgot the quotes.
Posted by: Anonymous | March 9, 2007 11:58 AM