Howard Bashman has a penetrating essay in today's Los Angeles Times ("'Conscience' Is No Cause For Judges To Flout Laws"): "[I]f one judge can elevate his conscience above the law, so can others, and soon we will have a system where judges at every level are free to decide cases based on personal predilection rather than binding judicial precedent and the texts of constitutions and statutes." While I wholeheartedly agree, I also have trouble imagining a world where law and circumstance don't sometimes inexorably conspire to wad up the proverbial Blindfold of Justice and send it skittering across the floor. (This observation probably has nothing to do with the fact I must negotiate the Judge Harry Pregerson Interchange 8-10 times a week...) I agree too with Howard when he says the thing to do if you're a judge in such a pickle is to "at a minimum, refuse to participate in deciding those cases in which the impediment arises," but I also can envision a different kind of conundrum that then becomes possible: a situation so anathema that no lower court judge can, in good conscience, apply the law as written. If judges at any level of the process have well-reasoned grounds for believing precedent to be unconscionable or unconstitutional (or both), then perhaps their duty to apply it becomes coextensive with their duty to express their displeasure about it (as Judge Reinhardt did). This information thus becomes available to the higher court, and may factor into its decision whether to reexamine the law by granting review or certiorari. (See also New York University School of Law professor Stephen Gillers, in a related Recorder article: "[Pregerson] should recuse himself and write his angry dissent in the recusal so he gets his voice heard. And it's an important voice.") I've said it before, I'll say it again: we need our very best people on the bench; they have one of the toughest jobs around.
In a May 23 post that broke this story, Howard also reproduced the pertinent text of the orders that gave rise to his incisive piece today in the Times. His next installment of 20 Questions for the Appellate Judge (with an undisclosed 9th Circuit Clinton appointee) is due for posting shortly after midnight, EDT, tonight.
Monday, June 2, 2003 at 8:42AM 