9th Cir Judge Reinhardt's 6/96 Speech On People's Deteriorating Opinion Of Bench And Bar
snip
Second, the changes in habeas corpus law which were a key part of
President Clinton's Anti-terrorist Law, though wholly unrelated to that
statute's professed purpose, are both sweeping and revolutionary. The
principal objective of the drafters of the habeas sections was to
prevent federal courts from overturning unconstitutional state
convictions, and to a surprising extent, they may have been successful.
However, this is not the place or time to discuss the specifics of the
new anti-habeas provisions that President Clinton has given us or their
effect on our historic concept of due process of law, anymore than this
is the place to discuss the draconian asylum and deportation provisions
that were contained in that same so-called anti-terrorist bill after
being enacted with almost no public awareness or discussion. In fact the
asylum provisions were so bad that when informed of their content
Senator Hatch immediately introduced partially corrective legislation
that then passed the Senate by an overwhelming vote of 51 to 49.
The fate of those comparatively innocuous ameliorative amendments in the
House is uncertain at best.
So where does all this leave us?
First, state courts will no longer have the same degree of comfort in
knowing that federal courts are there to save them when they fail to
protect the constitutional rights of unpopular criminal defendants. I
say this without any irony. I have spoken with judges who must stand for
election and have heard them say that they cannot afford to reverse
capital convictions in cases that engender heated community passions. I
hasten to add that I am not referring to California judges, though I do
recall both Justice Kaus and Justice Grodin speaking publicly of how
difficult it is for judges to separate a concern over reelection from
one's view of a controversial, complex and highly inflammatory legal
issue. We have all heard tales of the gallant and courageous Southern
Circuit Court judges appointed by President Eisenhower in the 1950's.
Those judges, including J. Skelly Wright, John Minor Wisdom, and Elbert
Tuttle among others fought a lonely and often dangerous struggle against
racial segregation, but they could not have done so without the security
of life tenure. Their jobs would not have lasted one minute had they had
to stand for re-election or been subject to recall. In fact, we in Los
Angeles lost two wonderful state court judges, Alfred Gittelson and Paul
Egly, because they tried to apply the law fairly and equally in a school
desegregation case. And only recently slates were formed to try to
ensure that only judges who scored high enough on a litmus law and order
test would be returned to office. While that effort failed, history
tells us that it could be repeated and perhaps with greater success.
One of the principal purposes of the Bill of Rights is to protect
unpopular minorities against the will of emotion-driven majorities.
Another is to ensure that criminal defendants, even those accused of the
most heinous crimes, enjoy the full rights to which all persons brought
before the bar of justice are entitled. It is the fate of judges who
enforce the Federal Constitution to take positions that may be extremely
unpopular with the electorate. That is the reason federal judges are
afforded life tenure.
http://www.lectlaw.com/files/jud39.htm And that is what makes the 9th circuit so dangerously liberal, and that is why the wingnuts are trying to break it up into various circuit courts. There are even calls from the wingnut right to ELECT federal judges and quit lifetime tenure.