Among those involved in writing the infamous legal memoranda recently released by the Obama Administration is the now Honorable Jay Bybee, federal appellate judge of the Ninth Circuit of Appeals. As a LAT article on the rising conservative nature of the Ninth Circuit [or is it lessening liberal nature?] referenced by "Today's Papers" in Slate today notes:
One of the conservatives, Judge Jay S. Bybee, when he was an assistant attorney general, helped write memos guiding the CIA on how far it could go in using extreme torture while interrogating prisoners, according to Justice Department documents Obama released last week.
That is a damning summary -- "extreme torture" is a conclusion. Bybee, I'm sure, would have argued that it was not torture. Torture, after all, is illegal in this country. One of his many colorful who might find the legal gymnastics he used is this effort is Judge Kozinski. As he noted in an interview, his job is to rule on the law. The OLC apparently also has this job. As its website notes, it is "imperative that our opinions be clear, accurate, thoroughly researched, and soundly reasoned." It is not just a spin job factory; in fact, "candid, independent, and principled advice—even when that advice may be inconsistent with the desires of policymakers" is its watchword.
Judge Kozinski is a libertarian, someone who is on record in saying that both the First and Second Amendment are fundamental to our liberty. He supports the constitutionality of death penalty and did not think the Kelo ruling was a big deal,* but was disappointed with the Supreme Court ruling on medicinal marijuana. [Another interesting point of view is that of a former police chief and supporter of drug legalization.] Kozinkski got in a bit of trouble a few years back after he visited death row:
As for the inmate I visited, he was housed on death row but he was no longer subject to the death penalty. I saw the gas chamber when I was there. I saw what people look like on death row and how they’re treated. It just sort of informs one, makes one more aware of what people are dealing with.
I think that the attorney general doesn’t like it that I’m supposedly a conservative judge who often goes against him. I have ruled against the death penalty in about half of the cases that have come to me
Kozinksi labels himself something of a strict constructionist, but not as much as Scalia and Thomas. [He has supported some forms of race conscious programs, particularly as applied to private institutions.] This sort of thing suggests why:
Words are cultural references. They’re proxies for ideas that people share, and the ideas that we share are different in material respects from those of the Founding Fathers. We view the world in different ways even when we use the same words as they did.
Those who know him and have seen him [e.g., if you go to the American and the Courts page of C-SPAN, there is footage of a case he presided over involving airport watchlists] respect his wit and brains, he is like Scalia with less sarcasm and rancor. One dissent included a dialogue between a lawyer and his client. A piece:
Lawyer: Juan, I have good news and bad news.
Ramirez-Lopez: OK, I’m ready. Give me the bad news first.
Lawyer: The bad news is that the Ninth Circuit affirmed your conviction and you’re going to spend many years in federal prison.
Ramirez-Lopez: Oh, man, that’s terrible. I’m so disappointed. But you said there’s good news too, right?
Lawyer: Yes, excellent news! I’m very excited.
Ramirez-Lopez: OK, I’m ready for some good news, let me have it.
Lawyer: Well, here it goes: You’ll be happy to know that you had a perfect trial. They got you fair and square.
As we are on the road [link to a couple good essays on the issue] to more confirmation battles, Judge Kozinski is evidence that we need not see everyone through a knee-jerk partisan lens. For instance, Judge Bates, a Bush appointee, recently upheld habeas rights for some detainees in Bagram prison. A recent debate I had with someone [on Obama's global warming policy] who often agrees with me also underlines that single-mindedness is hard to uphold. After all, often conservative Andrew Sullivan has provided some of the most eloquent responses to the torture papers.
Finding good members of the judiciary is a tricky business, and many factors are involved in the pursuit including ideology, but both sides also have to be on the look out for the complete picture. The LAT article underlines that the process leads to real results, but also that -- especially if done right -- the results can be of a nuanced character.
---
* I disagree on both, particularly on his suggestion the death penalty is clearly constitutional. As to Kelo, a major concern for many, I view it as much as a Fourth Amendment case as one involving taking of property as a whole. Taking of a home is specifically a problem in my eyes, since in that case monetary compensation can be of particularly limited value.