Archive for Sunday, June 30, 2002

Pledge’ judges known for independent spirit

Panel members who issued controversial ruling have different backgrounds, same devotion to individual rights

June 30, 2002


A moderate Republican appointed to the bench by President Nixon. A liberal Democrat married to the director of the Southern California chapter of the ACLU. And a Democrat appointed by a Republican who spent part of his boyhood in a World War II internment camp.

The three federal judges on California-based courts are from disparate backgrounds but all defied the national mood of patriotism and security fears in the past week with controversial rulings on the Pledge of Allegiance and terrorism. All three have time and again taken strong stands protecting individual rights over the objections of government and indeed, the majority of individuals.

Judge Alfred T. Goodwin, a moderate Republican, and Judge Stephen R. Reinhardt, a liberal Democrat, joined together on the U.S. 9th Circuit Court of Appeals Wednesday in a wildly unpopular ruling that declared the Pledge of Allegiance violates the Constitution because of the words "under God."

A few days earlier, Los Angeles U.S. District Court Judge Robert M. Takasugi, a Democrat appointed by former President Ford, ruled that the process by which the government classifies groups as terrorist deprives the organizations of their constitutional rights.

The rulings come at a time when many Americans fear more terrorist attacks and feel an urge to display their patriotism with American flags on their homes, businesses and cars.

But those who know the jurists said they were not surprised the three made highly sensitive legal calls that were likely to offend. Although different in temperament and philosophy, the three judges are known for fierce independence and a willingness to enter the fray. Each has decades of experience on the bench.

Nixon appointee

Goodwin, 79, who was appointed by Nixon, wrote the Pledge of Allegiance ruling. It said the Pledge violated the First Amendment because the words one nation "under God" endorse religion.

The 2-1 decision was a victory for a Sacramento County atheist who objected to teacher-led recitations of the Pledge at his daughter's elementary school.

The man who penned the ruling, which set off an explosive reaction from the president on down, is regarded as a strong individualist who believes in people's rights and has no compunction about ruling against the government.

When observers mention he is a Republican, they stress he is an "Oregon Republican," not beholden to ideology. Before becoming a federal judge, Goodwin spent nine years on the Oregon Supreme Court. President Nixon appointed him to the federal bench.

"He is a real Westerner," said Judge Reinhardt, who like Goodwin is being assailed for the ruling. "He is very independent, very straight, very plain-spoken, a delightful person to deal with. ... You can't place him easily in any philosophy other than a straight, old-fashioned kind of approach to life."

Unpretentious and unassuming, Goodwin has been described as an Oregon cowboy. He has a cabin in the Oregon mountains. He rides horses and lists his hobbies as canoeing and hiking.

He is among the best-liked jurists on the 9th Circuit bench.

Among the subjects Goodwin is most passionate about is the importance of a judiciary that is independent of political pressures.

'A vigorous defense'

He was chief judge of the San Francisco-based 9th Circuit at a time when there was a concerted effort to divide the Circuit, which covers nine states, into two separate courts.

Politicians from the Northwest led the drive because they were unhappy with many of the court's environmental rulings, including decisions Goodwin wrote or joined. Decisions by the 9th Circuit are the law, unless overturned by the U.S. Supreme Court, in all nine states it covers California, Alaska, Arizona, Hawaii, Idaho, Montana, Nevada, Oregon and Washington. "He weathered a lot of the attacks on the 9th Circuit as chief judge," said University of Santa Clara Law Professor Gerry Uelmen. "He put up a vigorous defense."

Although Goodwin fought hard to preserve the Circuit, "his career has not been marked by being in the center of controversy," said Mark Perry, a Washington civil lawyer who previously clerked for the 9th Circuit.

In fact, Goodwin's low key demeanor has made him a bit of a mystery, Perry said.

Not afraid of reversal

Reinhardt, in contrast, has always been in the spotlight and controversial.

Reinhardt, 71, is one of the most liberal federal judges in the nation, a jurist who rules as he sees fit even if he knows the U.S. Supreme Court will certainly overturn him.

"It is remarkable how often Judge Reinhardt appears as either the author or the second vote for so many of the 9th Circuit's controversial decisions," said Perry, who clerked for 9th Circuit Judge Alex Kozinski. "In this term alone, he authored two decisions that were reversed and joined two others that were reversed.

"Four decisions reversed in a single term is a pretty remarkable record unless you are Judge Reinhardt.'

Before former President Carter appointed him to the 9th Circuit, Reinhardt was a labor lawyer in Los Angeles and a Democratic Party activist. He is now married to Ramona Ripston, executive director of the American Civil Liberties Union of Southern California.

A judge's role is not to "see that the majority prevails," Reinhardt said in an interview the day after the ruling on the Pledge. "That is why we have a Bill of Rights so a court will see that the majority doesn't take away the rights of those they don't agree with."

He said he is undaunted by criticism. "It would be nice if everyone agreed with me," he said with a chuckle. "But the Constitution is not always very popular, and individual rights are not always very popular in this country, particularly in time of national crisis."

Reinhardt noted that many U.S. Supreme Court decisions are decided by a 5-4 vote, "and that doesn't mean that the five are correct."

In the middle

Takasugi, 71, has some of the characteristics of both men. Serving on the lower, federal district court in Los Angeles, Takasugi is often described as liberal but he doesn't embrace the label. He is unfailingly courteous to litigants. And like Goodwin and Reinhardt, he is known for independence.

His ruling on terrorism late last Friday did not stir the national outcry of the Pledge decision, but it too was based on a reading of the Constitution that protected individual rights at the expense of government and in defiance of public attitudes in the wake of Sept. 11.

Takasugi, who was interned along with thousands of other Japanese Americans in 1942 when he was 11 years old, threw out an indictment against seven Los Angeles residents accused of raising money for an Iranian opposition group that was placed on the State Department's list of terrorist organizations.

The federal district judge said the law classifying terrorist groups denies organizations their constitutional due process rights because they are not given a chance to rebut the allegations before being put on the list.

"The argument for national security should not serve as an excuse for obliterating the Constitution," Takasugi wrote.

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