WHACK! Consider yourself BENCH-SLAPPED! Welcome to the inaugural post of "Bench-Slapped! Article III Infighting," dedicated to chronicling spats, feuds, and rivalries within the Article III judiciary.
The title "Bench-Slapped!" is derived, of course, is from the term "bitch-slap." Lest you think Article III Groupie profane or uncouth, she would note for the record that this venerable term has been recognized by no less an authority than the Oxford English Dictionary, which defines "bitch-slap" (yes, it's hyphenated) as follows: "to deliver a stinging slap to (a person), esp. in order to humiliate one regarded as inferior." Considering that the Article III bench is occupied by 877 legal egos, many of them enormous, bench-slappery is inevitable--which is fortunate for us, because watching brilliant and distinguished jurists bench-slap each other silly is a deliciously guilty pleasure, Article III's answer to female mud wrestling.
Let us now consider the different forms bench-slappery may take. Bench-slappery within the district court bench is fairly limited. Because each district court judge is master of his domain, capable of treating his personal courtroom as his own little fiefdom, bench-slappery within federal trial courts is not very widespread. If district judges don't get along, they can simply avoid each other around the courthouse.
Significant bench-slappery takes place between the trial and appellate courts. Bench-slapping is frequently done "to humiliate one regarded as inferior," and what could be more inferior than a (literally) inferior court? Of course, not every negative action that an appellate court takes with respect to a trial court constitutes a bench-slap. A bench-slap must be personal: a district court gets reversed; a district judge gets bench-slapped. Thus, a garden-variety reversal should be viewed as simply an exercise in the correction of legal error. But issuing a writ of mandamus, for example, can be viewed as a stinging bench-slap of the district court judge. E.g., "The district judge presiding over the case went buck-wild--so we had to mandamus his ass!"
The greatest amount of bench-slappery takes place within the circuit courts. The structure of the appellate decision-making process, with cases decided by panels of three (or more) judges, requires circuit judges to interact with each other quite extensively. When this many egos rub against each other, chafing is inevitable. Even though many federal appeals courts are marked by a high degree of collegiality, such as the First Circuit and the Third Circuit, others are regular snake pits, such as the Sixth Circuit and the Ninth Circuit--the source of today's bench-slappery.
Very well, enough of the preliminaries--let's get nasty. It's time to get Bench-Slapped!
MEOW! With the possible exception of a French manicure, there is nothing Article III Groupie likes better than a good old-fashioned cat-fight. And this, dear reader, is no ordinary cat-fight. It is the latest battle in the long-running jurisprudential warfare between Judge Stephen Reinhardt, the Liberal Lion of the Ninth Circuit, and Judge Diarmuid O'Scannlain, the Conservative Cougar of the same court. (Yes, the notoriously left-wing Ninth Circuit does have a few token conservatives lying around.)
Judge Reinhardt, the Liberal Lion of the Ninth Circuit: He eats conservative judges for breakfast! (Photo credit: GeekPhilosopher.com.)
Both of our combatants are well-known and highly respected jurists with strong, and diametrically opposed, judicial philosophies. Both judges also possess strong feeding patterns. By "feeding patterns," UTR is referring, of course, to how frequently they send their clerks on to clerk at the Supreme Court, i.e., to join the ranks of the Elect. During the past ten terms, from October Term 1994 to October Term 2003, Judge Reinhardt sent six of his clerks to the Court, making him the 15th-ranked feeder judge for this period, and Judge O'Scannlain sent eight of his clerks to the Court, making him the 14th-ranked feeder judge.
For you law school gunner-types out there: If one were to prepare a Billboard Hot 100 chart of Supreme Court feeder judges, Judge O'Scannlain would be a bulleted entry, posssessing upward momentum. Focusing only on the past five terms, Judge O'Scannlain moves up to become the 10th-ranked feeder judge (and he goes as high as #8 if one removes two senior judges, Judge Silberman and Judge Williams of the magically delicious D.C. Circuit, whose feeding has dropped off sharply since they took senior status). Maybe you can't pronounce Diarmuid O'Scannlain's name, but Nino Scalia sure can! (Judge Reinhardt, in contrast, falls to #18 if one considers only the past five terms.)
As for their non-Supreme-Court feeding patterns, Judge O'Scannlain keeps himself quite trim and fit, as you can see here (right column), while Judge Reinhardt is on the heavy side, as shown in this picture--let's hope that beverage is low calorie! Judge Reinhardt hates following Supreme Court precedents authored by Justice Scalia, but perhaps he should consider following Justice Scalia's dietary precedent, by giving the Atkins Diet a try.
Judge Reinhardt loves carbs almost as much as he loves granting asylum petitions and habeas relief. Clerks who sat with Judge Reinhardt at the Ninth Circuit clerks' orientation in San Francisco have reported to UTR concerning his monopolization of the table's communal bread basket. (Photo credit: GeekPhilosopher.com.)
(Sorry, Article III Groupie apologizes for that digression. Such information properly belongs in UTR’s forthcoming report on the care and feeding of Article III judges, tentatively titled “A Hunger for Justice," which is described in the list of UTR's coming attractions near the end of this post. Now, back to the bench-slappery!)
Earlier this month, Judge Reinhardt and Judge O'Scannlain administered some fairly strong bench-slaps to each other, in their dueling opinions in Kennedy v. Lockyer. In this case, a Ninth Circuit panel majority--composed of Judge Reinhardt and Judge Raymond C. Fisher, a high-ranking DOJ official in the Clinton Administration and a member of the Elect--held that habeas relief should have been granted to the defendant in a case under California's "three strikes" law, in which the defendant's third strike was for "selling 0.08 grams of a substance in lieu of a controlled narcotic drug--a substance that looked like an illegal drug but wasn't--to an undercover police officer for $20." (Yes, yes, Article III Groupie realizes this decision is fairly old news; the opinions were filed on June 14, 2004. She apologizes for the delay and once again blames her day job.)
Judge O'Scannlain's fiery dissent begins with the following:
This case represents a triumph of lawyering from the bench. While I share some of the court's evident sympathy for the defendant--whose third strike resulted from the sale of less than one-tenth of one gram of a legal substance to an undercover officer--I respectfully dissent from its decision to step into counsel's shoes and tango its way around the deference we owe to state courts as coordinate expositors of federal law.
Whack! Did somebody just get bench-slapped?
Well, Judge Reinhardt can give as good as he gets. Check out footnote 20 of the majority opinion (some citations omitted):
Our dissenting colleague once again appears to enjoy playing numbers games in a desire to prove that the judicial system is flawed because a single district judge may declare an enactment unconstitutiona, or because less than a unanimous court may decide a case. Remarkably, he devotes a full section of his dissent to complaining about such conduct by the court which is such a source of "embarrassment" to him, and of which he involuntarily remains a member, see Statement of Diarmuid F. O'Scannlain, Hearing Before the Committee on the Judiciary, United States Senate, Improving the Administration of Justice: A Proposal to Split the Ninth Circuit (April 7, 2004). It is partly on this basis that, as he so inelegantly puts it, he "lamentably" dissents.
Whack! Was that the sound of one hand slapping? Catty references to matters unrelated to the case at hand, namely, Judge O'Scannlain's support for splitting the Ninth Circuit? Attacks on the quality of a colleague's prose styling? Article III Groupie hasn't seen this level of slappery since Amanda Woodward and Allison Parker went to town on each other on the dearly departed Melrose Place!
Judge Reinhardt isn't the only one, however, capable of catty citations. Take a look back at the dissent, specifically, footnote 7 and the accompanying text. Here Judge O'Scannlain seizes upon Judge Reinhardt's responses to Howard Bashman's "20 Questions for the Appellate Judge" feature on the appellate blogspot How Appealing, which he uses to criticize Judge Reinhardt's approach to judging as, well, lawless.
My goodness! Is commentary even needed for such flagrant bench-slappery? We all paid good money for our law degrees, so let's say the words together: Res ipsa loquitur.
Okay, fine, Article III Groupie feels a twinge of guilt over not adding more value, so she will endeavor to offer a few brief remarks. In case you have been hiding under a rock for the past decade, Judge Reinhardt and Judge O'Scannlain have been engaged in jurisprudential warfare for years. Because the Supremes have his back, Judge O'Scannlain often has the last word. But Judge Reinhardt views reversal by the Fascist Supreme Court as a badge of honor, and he is thus quite indifferent to bench-slaps administered by the Supremes.
(By the way, for those of you who cook, here's a recipe for you to try at home: (1) take an important and loopy opinion by Judge Reinhardt with wide-ranging implications for future cases; (2) add a dissent from the denial of en banc rehearing by Judge O'Scannlain; and (3) stir well. Presto! You've got yourself a delicious summary reversal. Indeed, to assist sleep-deprived members of the Elect in going through the pool of cert petitions, the Supreme Court Clerk's Office now requires petitioners seeking review of Judge Reinhardt's opinions to print the covers of their petitions not on standard white cardstock, as required by Supreme Court Rule 33, but on photographs of Judge Reinhardt.)
Some judges disagree jurisprudentially but get along quite well personally. According to Article III Groupie's Ninth Circuit correspondents, however, the difficulties between Judge Reinhardt and Judge O'Scannlain are personal as well as political. Judge Reinhardt's chilly relationship with Judge O'Scannlain can be contrasted with his friendship with the Ninth Circuit's most prominent conservative, Judge Alex Kozinski, the fifth-ranked feeder during the OT 1994 to OT 2003 period. (For those of you not in the know, "OT" is Elect-ese for "October Term." Fox is currently developing a show called The OT, in which gorgeous, scantily clad members of the Elect--all of whom hail from the East or West Coast--have their world turned upside-down when Chief Justice Rehnquist hires a hunky juvenile delinquent from Bumblef**k, Kansas, to clerk for him.)
Judge Reinhardt and Judge Kozinski make a big show out of their trans-ideological friendship, in a cute, somewhat self-congratulatory sort of way. Taking their judicial Punch and Judy show on tour, the two judges engage in frequent, spirited, good-natured debates on a wide range of subjects, held at different venues around the country. The subtext of the Kozinski-Reinhardt friendship is: "Yes, we disagree with each other violently. But we're BFFs because we're the coolest kids on the playground--the two smartest judges on the Ninth Circuit!" Because of his high-profile friendship with Judge Kozinski, Judge Reinhardt's frostiness towards Judge O'Scannlain contains within it a dismissiveness of Judge O'Scannlain as a jurist and thinker: "Sure, I can be friends with conservatives--but only conservatives I respect!"
For his part, Judge O'Scannlain does not deny Judge Reinhardt's intelligence. If anything, Judge O'Scannlain views Judge Reinhardt as too intelligent for his own good--and, for that matter, the good of the free world. Judge O'Scannlain believes that Judge Reinhardt, like the Emperor Palpatine of Star Wars, has decided to employ his powers for evil ends. He thinks that Judge Reinhardt is, as the Church Lady might say, "Satan?"
In sum, Judge Reinhardt disrespects and dislikes Judge O'Scannlain, and Judge O'Scannlain similarly dislikes Judge Reinhardt, whom he views as the hub of the axis of evil. (Other points in this alleged axis: Judge Harry Pregerson; Judge Betty B. Fletcher; and Judge Betty's devil spawn, Judge William A. Fletcher, a member of the Elect.) We can surely count on Judge Reinhardt and Judge O'Scannlain for some fantastic bench-slappery in the years ahead.
By the way, in case you're wondering, Judge Reinhardt is the Emperor rather than Darth Vader because Darth Vader's position is already taken: by the brilliant, cold-as-ice Judge Marsha Berzon. A member of the Elect, Judge Berzon uses the light-saber of her chilly intellect to cut down all who stand in her way. President Clinton spent a tremendous amount of political capital pushing Judge Berzon's nomination to the Ninth Circuit through the Senate, despite strong opposition from the Republicans, because he knew that only she was qualified to take up the mantle of Judge Reinhardt. After Judge Reinhardt's inevitable passing, only Judge Berzon can provide comparably courageous and cunning leadership for the left wing of the Ninth Circuit. Article III Groupie is both obsessed with and deathly afraid of Judge Berzon, who will no doubt cast her dark shadow over the pages of UTR in the not-too-distant future. (For those of you Harry Potter fans out there, Judge Berzon will sometimes be referred to in the pages of UTR as "She-Who-Must-Not-Be-Named" or "You-Know-Who.")
Please send tips for "Bench-Slapped!" to me, Article III Groupie, by e-mail. Tips about She-Who-Must-Not-Be-Named are especially welcome--even though Article III Groupie may be too afraid to publish them! (But Article III Groupie does not want to hear that You-Know-Who is actually a sweet, warm-and-fuzzy person who loves small animals. This would just ruin the magnificent fantasy Article III Groupie has built up in her head of an out-of-control, Left-Wing Judicial Diva!)
Bench-slapped and reeling,
P.S. For those of you Ninth Circuit groupies out there, here is one question about She-Who-Must-Not-Be-Named that Article III Groupie would like answered: Is her middle initial "L.", as indicated here, or "S.", as indicated here? Presumably it is "S.", as indicated in her published opinions. But why does a Google search for "Marsha L. Berzon" generate so many results, including references to such official sources such as the Federal Judicial Yellow Book and Senate proceedings concerning her nomination?)