Reinhardt & Kozinski: The Judicial “Odd Couple” Take Their Show On The Road

October 29, 2007 by  
Filed under Around the Courthouse

Judge Alex Kozinski reprised his role as Oscar Madison opposite Judge Stephen Reinhardt (as Felix Unger) in “The Judicial Odd Couple,” an entertaining lunch-time performance at the Bar Association of San Francisco. Okay, that’s not entirely true. The two Ninth Circuit jurists did engage in a lively discussion, but the actual title of the event on October 25, 2007, was the First Annual Jurisprudence Luncheon: How Judges Decide Cases. Too bad, because I think my title would have been more fitting.

Like the original play by Neil Simon, the re-make had both drama and comedy. The dramatic segment was the Q & A between a lawyer in the audience and Judge Kozinski.

In the lead-up to this exchange, Judge Kozinski explained his textualist approach to Constitutional interpretation. The Constitutional prohibition on “cruel and unusual punishment,” he said, can be understood through interpreting these everyday words: cruel and unusual. “The death penalty is cruel, even if done nicely, but is it unusual?” Kozinski asked. No, he said, because 38 states have enacted it.

This led to the following question and answer:

Lawyer: Judge Kozinski, if 26 states enacted laws requiring castration for rapists, would it no longer be cruel and unusual punishment?

Kozinski:  I don’t think you would need that many. Ten to 15 [states] would suffice.

Kozinski demonstrated that he is still not afraid to speak his mind. Judge Reinhardt is no shrinking violet, either. The liberal Reinhardt had a jab or two for his conservative colleague, but nothing as stunningly frank as the comments above. Kozinski clearly enjoyed tweaking his (presumably liberal) San Francisco audience.

Both judges complained about the politics of judicial confirmation. Judge Kozinski illustrated the problem today with a page from history: the 1979 Senate confirmation hearing for Judge Harry Pregerson, described by Kozinski as “one of the truly ultimately liberal judges the world has ever seen.”

At Pregerson’s confirmation hearing, then-Senator Alan Simpson (R-Wyo.) asked the nominee if the law required a decision “that offended your own conscience, what might you do in that situation.”

Pregerson responded: “I have to be honest with you. If I was faced with a situation like that and it ran against my conscience, I would follow my conscience.”

This was a few years before the Reagan crusade to reshape the federal judiciary and even longer before the Judge Bork confirmation battle.  Judicial selection hasn’t been the same since.  Still, even in that day and age, Pregerson’s honesty stood out.  Senator Patrick Leahy (D-Vt.) commented at the hearing: “I can’t help but think in your answer to Senator Simpson’s question, that I expect a great number of Federal judges feel as you do, but I suspect only a small percentage would be as candid as you were in your response.” The full Senate went on to confirm unanimously Pregerson’s nomination to the Ninth Circuit.

Said Kozinski:  “Those were the days.  No one will admit anything like this ever again.”

In his remarks, Reinhardt took exception to the title of the panel discussion.  “I don’t know how to answer the question ‘How do judges make a decision.’  Much of what judges do is unknowing.  In many cases you’d have to ask a psychiatrist why a judge reached a particular decision.”

I agree with Reinhardt that judges are limited in their ability to peel back the veneer and expose the inner workings of judicial decision-making.  At this event, and others like it, judges invariably say that they try to apply consistent legal principles to the facts of the case without bias or prejudice, fear or favor.  And every practitioner – recalling some personal experience – responds:  “Yeah, right.”

Moderator Jim Brosnahan of Morrison & Foerster seemed to enjoy the pointed questions directed to the panel.  “This is fun,” he said.  “The lawyers get to ask the judges questions.”  Kozinski was quick with a come back:  “You will notice I didn’t do what the lawyers do with judges – evade the question.”  Touche.

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