alex kozinski stephen reinhardt above the law.JPGjay bybee judge bybee judge jay s bybee above the law.jpg
Judge Stephen Reinhardt (left), perhaps the most prominent liberal appeals court judge in the country, is buddies with his conservative colleague on the Ninth Circuit, Judge Alex Kozinski (right). But we suspect that Judge Reinhardt feels less warmly towards Judge Jay S. Bybee (far right).

You can always count on the Ninth Circuit for a good old-fashioned judicial smackfest. And this latest one is very, very good.
Stepping into the ring are two of the Ninth Circuit’s most high-profile judges. On the left: Judge Stephen Reinhardt, the court’s liberal lion, who has been trading benchslaps with conservatives for decades. On the right: Judge Jay Bybee, one of the court’s newer (and more conservative) members. Luckily for him, Judge Bybee was confirmed to his life-tenured post shortly before eruption of the controversy over the 2002 Bush administration “torture memo” (which he signed).
From an article by Justin Scheck of The Recorder:

In March of 2005, Reinhardt and Bybee found themselves on a three-judge panel — together with Senior Judge Procter Hug Jr. — that heard the case of Roger Smith. Smith claimed that his guilty plea in the murder of Emmet Konzelman was no good since his supposed accomplice Jacob Edmonds — who pleaded guilty to a lesser charge and testified against Smith — later recanted his testimony.

In his majority opinion, Reinhardt wrote that even though Smith had not exhausted his state claims, a rarely used exception should allow his case to move forward in federal court.

Par for the Reinhardt course. How did Bybee respond?

“I disagree with nearly every word the majority has written, including ‘and’ and ‘the.’ My profound disagreement is not limited to the facts, but runs throughout the majority opinion.”

Gee, Judge Bybee, tell us how you really feel!
And there’s more. Check out the rest, after the jump.


Despite having signed the hard-ass “torture memo,” Judge Bybee is said to be very pleasant and mild-mannered in person. But in his Smith dissent, he didn’t pull any punches:

[Judge Bybee] goes on to say that “the majority infers elaborate conclusions from the tiniest scraps of evidence, building narrow platforms that it leaps between in a complex game of judicial hopscotch. It is difficult enough to trace their path; I cannot join them in it.”

We never liked hopscotch much either. “Freeze tag” was way more fun.

In a footnote, though, Bybee does agree with the majority on one point — about the given name of “Hooter” Bouse, who allegedly drove with Edmonds and Smith to the Konzelman home.

“There is some ambiguity in the record as to whether Mr. Bouse’s first name is ‘Arlen’ or ‘Marlin,’” he wrote. “The district and magistrate judges used the former, and the majority and the state court sentencing transcript use the latter. On this question, at least, I join the majority.”

Glad to know that liberals and conservatives can find some common ground. Ain’t collegiality swell?
Update: Dan Solove agrees with our characterization of this case as benchslaplicious.
9th Circuit Dissent Goes to Nth Degree [The Recorder via National Appellate Journal Blog]
Smith v. Baldwin [Ninth Circuit (PDF)]
Bench-Slapped! Reinhardt v. O’Scannlain [UTR]


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