Mainstreaming Accountability

Ninth Circuit Judge Milan Smith, who just rejected John Ashcroft’s claim of qualified immunity in Abdullah Al-Kid v. John Ashcroft, wrote that the Bush Administration’s alleged practice of abusing of the material witness statute was “repugnant to the Constitution, and a painful reminder of some of the most ignominious chapters of our national history.”

Notably, Judge Smith was quoted last year saying the following about the Ninth Circuit:

[Smith] credits this “mainstreaming” [evidenced in a lower reversal rate] of the Circuit to two main factors: the reduction in influence by Carter appointees and the changing dynamic of the confirmation process.

“It’s very rare anymore that you’re [going to] have three Carter judges sitting together [on a panel],” said Smith.

Smith believes the current composition of the Circuit explains the reduction in extreme opinions: “We have 27 active judges and 22 senior judges [on the Circuit] . . . . Of those, Carter appointed 15 in total.”
Of the 15 Carter appointees, two have passed away, one has retired completely from the court, and nine have moved into senior status, a form of semi-retirement whereby a judge vacates his seat and hears a diminished caseload but keeps his full salary. Almost every Carter appointee is now over the age of 70, and Smith stated that it will not be long before the remainder of them “leave this vale of tears.” Only three Carter appointees remain active, including former Chief Judge Mary M. Schroeder and well-known Judge Stephen Reinhardt. According to Smith, the less critical atmosphere which allowed the appointment of these more strident and ideological judges changed during the Reagan administration.

I wonder how the Carter-holdouts felt about this set of comments when they appeared?  Maybe Judge Smith was misquoted.  But if this article represents his thought, it’s pretty clear that he seems himself as a pragmatic “mainstream” conservative, who wants to be seen as reasoanble and apolitical, making his evident annoyance with the government’s position in the Ashcroft case all that much more remarkable.

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