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Yesterday, I had the pleasure of attending our local Riverside County Bar Association’s general membership meeting at the historic Mission Inn in Riverside, Calif. The salmon and the cr?me brule? were fantastic, but the salmon wasn’t the only thing fishy in the room. For entertainment, we were provided with a lecture entitled “A View from the Top: Perspectives from the U.S. Court of Appeal 9th Circuit” from Justices Alex Kozinski (conservative) and Stephen Reinhart (liberal) of the 9th Circuit. In the introductions, we were duly reminded that Justice Kozinski was a Reagan appointee and that Reinhart was a Carter appointee. Naturally, I expected a rousing debate between the two about the travails of the Constitution in contemporary society.

For those who may not remember, Justice Reinhart is the justice who authored the 9th Circuit opinion that found the Pledge of Allegiance to be unconstitutional. It may also be noteworthy that this same justice was married to Ramona Ripston, the former executive director of the American Civil Liberties Union, at the time he wrote this highly controversial opinion.

From Justice Reinhart’s perspective, most of his portion of the seminar was focused on his dismay at the fact that certain members of society seemed to believe that there are “activist judges,” that there are public claims of a lack of objectivity on the bench, and that there was any distrust at all in the federal judiciary. He claimed that the judiciary is the most trusted branch of government according to polls and that the idea of splitting the 9th Circuit was the brainchild of some “loser” attorney in the Northwest. We were even told that it was his strong position that the 9th Circuit is actually moderate to slightly conservative. Finally, we were all reminded that the 9th Circuit is essentially in lockstep with the public, but that bad Supreme Court appointments by President Bush and his ilk could destroy civil liberties as we know them.

While my blood pressure had certainly risen dramatically in the 40 minutes or so Justice Reinhart spoke, I really hit the floor when “our guy” spoke. Justice Kozinski went on for some time about how stupid Congress was for stepping on the judiciary’s toes in the Schiavo case and even went on to say that fighting for a reversal of Roe v. Wade could be one of the dumbest things the Republican Party could ever do. While one could certainly think that this was provocative in some philosophical way, what he said after that was what really turned my stomach while enjoying an otherwise good meal.

Kozinski wrapped up his 30-minute presentation by indicating that, even if there were a new majority on the Supreme Court that overturned Roe v. Wade, recent affirmative action decisions and privacy rights for homosexuals, our society would not really change in any meaningful way. Society would just keep going the way it is. He indicated that it was unlikely new affirmative action programs would be instituted, that laws against sodomy would be reinvoked or that abortion would be outlawed by the states. While some of the final conclusion might be true because of the general apathy of citizens, the suggestion that these decisions have no real bearing on society is disheartening and demonstrates a complete disregard for Ronald Reagan’s optimistic views on the sanctity of life and what that means to all of us.

I left wondering how it could be that fighting for the life of an unborn child through the law could somehow mean the destruction of the Republican Party. Is this to say that most people really do support the idea of surgically dismembering a living child in the interest of a mother who simply doesn’t want the child? Or rather, is a culture of life so far removed from what society considers normal that the Republican Party should just support abortion at will? I do really want to believe that the justices who are “on our side” see the value of applying the Constitution in a way that demands that all of us who were created equal by our Maker be accorded a certain level of sanctity. While we may each have an equal opportunity to lose our sanctity and rights by engaging in crime or being lazy in our personal adherence to constitutional postulates, I am fairly certain that we shouldn’t be condoning a Supreme Court view of the world that says we don’t even come into the world with the untainted value of being a human being.

With respect to the issue of affirmative action, are we really to presuppose the Supreme Court’s views on this issue have no bearing on our lives? For anyone who has been denied a job opportunity because of his race, the answer should be obvious. The Supreme Court does indeed set standards that have an everyday bearing on the lives of us who live under the rule of these men and women in black robes.

I was rather taken aback by the replete references to the affirmative action issue by both justices, since I am still waiting for the 9th Circuit to issue its final opinion in the matter of Friery v. Los Angeles Unified School District, a case I had argued before the 9th Circuit years ago. In this case, the Los Angeles Unified School District admitted that they refused to accept a transfer application for a Van Nuys High School teacher because he was of the “wrong ethnic origin.” Yes, that’s right. LAUSD actually admitted this was the reason for denying an application, and the 9th Circuit mentioned the incredible admission in an earlier published opinion in this case. Of course, the only problem is that Mr. Friery is “white” – so I guess the 9th Circuit just doesn’t know what to do with the case since they might have to find that all racism is wrong.

Finally, on the issue of homosexual rights, I cannot believe a Reagan appointee would conclude that what the Supreme Court does with this issue will likely have no real impact on our daily lives. While the right of privacy is an important right, we do need to remember that it is not expressly set forth in the Constitution and is much a creature of progressive judicial thinking as was the decision in Roe v. Wade. While I can’t say I give a whole lot of thought to what homosexuals are doing in the privacy of their own bedrooms, I can say that I really do care a lot about what “marriage” means and whether or not the spread of AIDS or other diseases could kill fellow members of society.

The ability to procreate is of the most sanctified human characteristics that we possess. Through this act, we are given the opportunity to continue reflecting God’s image in the world. This act, even from the most secular of viewpoints, derives from the union of a man and woman. The suggestion that placing this most basic element of our humanity on par with sodomy is reprobate. The Supreme Court’s conscious ignorance of the value of humanity’s most essential elements is an invitation for complete disaster. One need only look back to the epic battles between Rome’s senate, reprobate emperors and her armies to see that principles always have an ultimate effect on the individual members of society and on history itself.

To the extent that we should place trust in the judiciary as the highest and final arbiter of these vital legal issues that dictate our most basic connections to each other and the State, I remain convinced that Supreme Court appointments matter enormously to the fulfillment of our American destiny. Democrats know this, and that is why they are fighting as hard as they can to prevent the creation of a society that might share my values and the values of our founders.

I am even more convinced that the public ought to be able to trust those appointed to the lifelong task of preserving and defending our Constitution for all who might be subject to devaluation of their lives, racism or destruction of the very family units that ensure the stability of our society. In this vein, I would think that Justice Reinhart would not want to argue a case as an attorney if he knew that his judge was married to Rush Limbaugh anymore than I feel comfortable knowing that the Pledge of Allegiance was put before him while he was married to the ACLU. Would you trust a guy who was married to your worst enemy – an enemy that wanted to destroy all that you consider to be good in the moral and political aspects of your existence?

As for Judge Kozinski, I must beg of him that he come to the realization that what we do in the legal profession does matter, and people really do care about what happens at the Supreme Court. Our profession and what we do can cause the death of a helpless woman, we can cause the bloody dismemberment of a child, we can inflict the lifelong wounds of racism on another, and we have the power to bring down the very institutions that enable us to practice our honored profession. We can only prevent these things from happening by standing for what is right, moral and objective. We must take on the enemy because without our participation the other side wins by default and the entire purpose of a dual-party system is lost.

While I detest many of the values expressed in Judge Reinhart’s opinions, I respect his desire to stay true to his position. The Pledge of Allegiance decision was well-written because he followed the sickly law that had been created by his predecessors and through the lack of vigilance on our side. Stare decisis was preserved and Reinhart won out because he stuck to principle. Instead of addressing the issue head on and standing for what was right and coincidentally consistent with the public’s views, the Supreme Court skirted the substance of the Pledge of Allegiance by simply claiming that the plaintiff had no standing in the case. From what I can tell, if the matter had been left to Kozinski, the legal analysis may have only focused on whether the stability of our party could be maintained by keeping the Pledge of Allegiance.



Richard D. Ackerman is the president of the Pro-Family Law Center. He has argued and briefed cases before the 9th Circuit Court of Appeal on the Pledge of Allegiance and affirmative action. He has also briefed many other cases before the Supreme Court on the issues of homosexual rights, affirmative action and bioethical issues.

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