By Dave Andrusko
This post is not intended to take potshots at “Stephen Reinhardt, the famously liberal judge who died last month after 37 years on the federal appellate bench,” as former New York Times Supreme Court reporter Linda Greenhouse began her tribute to her fellow liberal today in “Dissenting against the Supreme Court’s Rightward Shift.” It is to put his life-long judicial ideology, as conveyed by Greenhouse in a piece for the New York Times, in the context of the ongoing debate over what should be the proper direction for the Supreme Court and the shameless use of double standards.
Pro-lifers remember Judge Reinhardt as part of a three-member panel of the United States Court of Appeals for the 9th circuit which in 2006 held that the federal ban on partial-birth abortions was unconstitutional. Fortunately the following year the Supreme Court upheld the law, signed by pro-life President George W. Bush in 2003, in Gonzales v. Carhart.
A decade before Judge Reinhardt wrote the majority opinion in a case known as Compassion in Dying v. State of Washington. That decision overturned the state of Washington’s ban on assisting suicide. In 1997 the United States Supreme Court unanimously reversed the 9th Circuit’s decision, holding that there is no federal constitutional right to assisted suicide.
These were not insignificant rulings. And he was very, very wrong on both.
But to be clear there is nothing wrong with the famously pro-abortion Greenhouse touting Judge Reinhart as the conscience of the saving judicial remnant. She tells the story of how Judge Reinhardt was not happy when in several stories in the early 1990s she described three Supreme Court justices as a “moderately conservative middle group of justices.”
In a subsequent conversation with Judge Reinhart, Greenhouse figured out the source of their disagreement–“baselines”:
The baseline against which I was measuring the court was the devastation that most liberals had been expecting given that appointees of Presidents Ronald Reagan and George H. W. Bush now made up a majority of the justices. For Judge Reinhardt, the baseline was the court’s liberal golden era under Chief Justice Earl Warren. And from his perspective, he was completely right.
“Baselines” is an interesting way of understanding her piece. For example, her (favorable) “baseline” for making judicial appointments would be something like this.
At his death at age 87, Judge Reinhardt was the last of the 56 Court of Appeals judges appointed by President Jimmy Carter who was still in active service. Although President Carter never had a chance to name a Supreme Court justice, he had a transformative effect on the federal judiciary. During his single term, he was able to take full advantage of the creation by Congress of 152 new judgeships — a 30 percent expansion of the federal bench. … Despite the crises that plagued the Carter years, for the courts, it was an expansive and progressive era.
The negative baseline would be the wave of judicial appointments made by President Trump. Last Friday, discussing the laments of one pro-abortionist written just days before the anniversary of Justice Gorsuch’s confirmation, we quoted one of his primary concern:
The Senate has confirmed 29 of Trump’s judicial nominees, including 14 circuit court nominees. At this stage in their presidencies, Obama had six confirmed circuit court judges, George W. Bush had seven, and Bill Clinton had three.
Another way of explaining “baselines” is the use of double-standards. Greenhouse explains early in her piece how the few conservatives on the notoriously left-wing 9th circuit would ask that the entire circuit hear decisions rendered by three-judge panels that would always be dominated by judicial liberals. Greenhouse explains
Conservative members of the Ninth Circuit would often ask for rehearing of a Reinhardt opinion, not because they thought they could prevail against the dominant liberal majority but because they fully expected to be turned down. They would then publish a dissent laying out all the reasons the panel had been mistaken in denying a rehearing. The losing party in the case …could then attach the dissenting opinion to its Supreme Court appeal as a surefire way of getting the attention of like-minded Supreme Court justices.
Does anyone think if it were liberal, pro-abortion judges who are outgunned, they would not adopt the exact same strategy? In fact, that’s exactly what Judge Reinhardt did in one of his last opinions.
From which Greenhouse immediately segues to raise this issue:
Judge Reinhardt’s approach raises the question of what stance a judge — or justice — should maintain toward an evolution in the legal landscape that he or she regards as profoundly misguided.
Without getting too deep into the weeds, she cites differing strategies utilized by liberal pro-abortion justices of which Greenhouse clearly approves. But what about the strategies employed in the dissents of the late Justice Scalia and Justice Clarence Thomas?
To the Linda Greenhouses of this world, theirs cannot be an honest attempt to return Supreme Court jurisprudence to its Constitutional moorings.
How dare they support laws banning assisted suicide and the hideous partial-birth abortion technique. Don’t they understand that “the arc of history” is bending in a different direction?
No, they don’t. Rather, they believe in generosity toward the unborn and equality for the littlest Americans. These are qualities that used to characterize us as a people not so long ago, and no amount of gibberish about “the arc of history” can (or should) change that.
Historian David Thelen had a better understanding: “The challenge of history is to recover the past and introduce it to the present.”