3 Federal Judges in California Swim Against a Fervent National Tide

One is a moderate Republican appointed to the bench by President Nixon. Another is a liberal Democrat married to the director of the Southern California chapter of the ACLU. The third, who spent part of his youth in a World War II internment camp, is a Democrat who was appointed by a Republican. The three California-based federal judges are from disparate backgrounds, but all defied the national mood of patriotism and security fears in the past week with controversial rulings on the Pledge of Allegiance and terrorism. All three time and again have taken strong stands protecting individual rights over the objections of government--and indeed, the majority of individuals.

Judge Alfred T. Goodwin, a moderate Republican, and Judge Stephen R. Reinhardt, a liberal Democrat, joined together on the U.S. 9th Circuit Court of Appeals Wednesday in a wildly unpopular ruling that declared the Pledge of Allegiance violates the Constitution because it contains the words “under God.”

A few days earlier, Los Angeles U.S. District Judge Robert M. Takasugi, a Democrat appointed by former President Ford, ruled that the process by which the government classifies groups as terrorist in nature deprives the organizations of their constitutional rights.

The rulings come at a time when many Americans fear more terrorist attacks and feel an urge to display their patriotism with American flags on their homes, businesses and cars.

Those who know the three jurists said they were not surprised they made highly sensitive legal calls that were likely to offend. Although different in temperament and philosophy, the three judges are known for their fierce independence. Each has decades of experience on the bench.

Goodwin, 79, who was appointed to the federal bench by Nixon, wrote the Pledge of Allegiance ruling. It said the pledge violates the 1st Amendment because the words “one nation, under God,” endorse religion.

The 2-1 decision was a victory for a Sacramento County atheist who objected to teacher-led recitations of the pledge at his daughter’s elementary school.

The man who wrote the ruling, which set off an explosive reaction from President Bush on down, is regarded as a strong individualist who has no compunction about ruling against the government.

When observers mention he is a Republican, they stress he is an “Oregon Republican,” not beholden to ideology. Before becoming a federal judge, Goodwin spent nine years on the Oregon Supreme Court.

“He is a real Westerner,” said Judge Reinhardt, who, like Goodwin, is being assailed for the pledge ruling. “He is very independent, very straight, very plain-spoken, a delightful person to deal with.... You can’t place him easily in any philosophy other than a straight, old-fashioned kind of approach to life.”

An ‘Oregon Cowboy’

Unpretentious and unassuming, Goodwin has been described as an Oregon cowboy. He has a cabin in the Oregon mountains. He rides horses and lists his hobbies as canoeing and hiking.

He is among the best-liked jurists on the 9th Circuit bench.

“He is a mild-mannered guy, a very sweet man,” said UC Berkeley law professor Jesse Choper.

Among the subjects Goodwin is most passionate about is the importance of a judiciary that is independent of political pressures.

He was chief judge of the San Francisco-based 9th Circuit at a time when there was a concerted effort to divide the circuit, which covers nine states, into two separate courts.

Politicians from the Northwest led the drive because they were unhappy with many of the court’s environmental rulings, including decisions Goodwin wrote or joined. Decisions by the 9th Circuit are the law, unless overturned by the U.S. Supreme Court, in all nine states it covers--California, Alaska, Arizona, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.

“He weathered a lot of the attacks on the 9th Circuit as chief judge,” said University of Santa Clara law professor Gerry Uelmen. “He put up a vigorous defense.”

Although Goodwin fought hard to preserve the 9th Circuit, “his career has not been marked by being in the center of controversy,” said Mark Perry, a Washington civil lawyer who previously clerked for the court.

In fact, Goodwin’s low-key demeanor has made him a bit of a mystery, Perry said.

Reinhardt, by contrast, has always been in the spotlight--and controversial.

“As soon as we heard the news of the decision, my wife turned to me and said: ‘That has got to be Reinhardt,’ ” Uelmen said.

Reinhardt, 71, is one of the most liberal federal judges in the nation, a jurist who rules as he sees fit even if he knows the Supreme Court will certainly overturn him.

“It is remarkable how often Judge Reinhardt appears as either the author or the second vote for so many of the 9th Circuit’s controversial decisions,” said Perry, who clerked for 9th Circuit Judge Alex Kozinski. “In this term alone, he authored two decisions that were reversed and joined two others that were reversed.

“Four decisions reversed in a single term is a pretty remarkable record, unless you are Judge Reinhardt.”

Before former President Carter appointed him to the 9th Circuit, Reinhardt was a labor lawyer in Los Angeles and a Democratic Party activist. He was reared in a show business family--his stepfather was a film director and producer who worked on “The Red Badge of Courage” and “Command Decision”--and big-name stars were not infrequent visitors to his family’s Los Angeles home.

He is married to Ramona Ripston, executive director of the American Civil Liberties Union of Southern California.

A judge’s role is not to “see that the majority prevails,” Reinhardt said in an interview the day after the ruling on the Pledge of Allegiance. “That is why we have a Bill of Rights--so a court will see that the majority doesn’t take away the rights of those they don’t agree with.”

He said he is undaunted by criticism. “It would be nice if everyone agreed with me,” he said with a chuckle. “But the Constitution is not always very popular, and individual rights are not always very popular in this country, particularly in time of national crisis.”

Reinhardt noted that many Supreme Court decisions are decided by a 5-4 vote, “and that doesn’t mean that the five are correct.”

Reinhardt has been described as relentless when he thinks he is correct. He does not back down.

He has no qualms about taking jabs at the U.S. Supreme Court or the president, and he takes pride in being a liberal even though many would shy away from the label.

Reinhardt takes rulings by the more conservative Supreme Court and crafts them into a fashion that supports his views, Choper said.

“He is not off the wall with his reasoning, but he is quite out there with his results,” the UC Berkeley law professor said. “And he knows it. He feels that is his role. He is an activist. He thinks the courts are there to do good.”

Unlike the ever-amiable Goodwin, Reinhardt has a reputation for being gruff and at times impatient on the bench.

“Lawyers who appear before him aren’t always thrilled with the experience,” said Columbia University law professor Michael Dorf, who clerked for Reinhardt more than a decade ago. “He doesn’t want to play games. He wants to get to the bottom of the matter.”

Takasugi, 71, is a mixture of the other men. Serving at a lower level, on the lower federal district court in Los Angeles, Takasugi is often described as liberal, but he doesn’t embrace the label.

His ruling on terror groups late last Friday did not stir the national outcry of the pledge decision, but it too was based on a reading of the Constitution that protected individual rights at the expense of government and in defiance of public attitudes in the wake of Sept. 11.

Takasugi threw out an indictment against seven Los Angeles residents accused of raising money for an Iranian opposition group that had been placed on the State Department’s list of terrorist organizations.

The federal district judge said the law classifying terrorist groups denies organizations their constitutional due-process rights because they are not given a chance to rebut the allegations before being put on the list.

“National security is certainly a matter of grave concern,” Takasugi wrote in a 19-page opinion. “When weighed against a fundamental constitutional right which defines our very existence, the argument for national security should not serve as an excuse for obliterating the Constitution.”

Prosecutors argued that a federal appeals court in Washington, D.C., had previously upheld the State Department’s designation procedure and that Takasugi was obliged to go along.

“I do not share this view,” he replied.

“This court understands its oath to uphold the Constitution and apply only those laws made in conformance to and pursuance of the Constitution,” he wrote.

“I will not abdicate this duty and allow this criminal case to proceed if the evidence indicates that one element of the offense--the foreign terrorist designation--was procured in violation of the Constitution.”

Challenge Is Key

Takasugi’s ruling has no immediate effect beyond the case before him. If, however, the prosecution challenges the ruling before U.S. 9th Circuit Court and loses, Takasugi’s decision could become law throughout the circuit.

Takasugi’s decision to become a lawyer was spurred by childhood experience. When he was 11, the U.S. government gave his family two weeks to vacate their home in Tacoma, Wash., and report for relocation to an internment camp at Tule Lake, Calif., along with thousands of other Japanese Americans.

His father, who had been a commercial fisherman, had trouble coping with his inability to protect and support his family during internment. After 2 1/2 years in the camp, his father died at the age of 57.

“I think he died, if anything, of the stress that was caused [by feeling] he was totally helpless,” Takasugi told the Daily Journal, a legal newspaper, in 1993.

Takasugi, like Goodwin and Reinhardt, is no ivory-tower jurist with little sense of the practical effects and reactions his rulings will bring. He has presided over several high-profile trials, including the cocaine-trafficking prosecution of John Z. DeLorean, who was acquitted.

Takasugi is “very careful in his rulings,” said a prosecutor who now has a case before the judge, “and, even though he may go against us, he does his research and knows the case through and through.”

Defense lawyers also like him.

“I think he’s probably the preeminent judge in this district who understands what the Constitution really means,” said veteran criminal defense lawyer Errol H. Stambler, who just completed an eight-week jury trial before Takasugi.

Some judges rule with an eye to what the U.S. Supreme Court would want. Others apply the precedents as they see fit. Goodwin, Reinhardt and Takasugi are in that latter camp.

“The question is whether the job of lower court judges is to apply the precedents as they understand them or try to put themselves in the mind of their bosses on the U.S. Supreme Court,” said Dorf, the Columbia law professor.

“There is no clear, right answer.”

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3 Judges at the Core of Controversy:

Alfred T. Goodwin

Born: June 29, 1923, in Bellingham, Wash.

Federal Judicial Service: U.S. District Court, District of Oregon; nominated by President Nixon Sept. 22, 1969; confirmed by the Senate Dec. 10, 1969, and received commission Dec. 11, 1969.

U.S. 9th Circuit Court of Appeals: Nominated by Nixon Nov. 3, 1971; confirmed by the Senate Nov. 23, 1971; received commission Nov. 30, 1971; served as chief judge, 1988-1991; assumed senior status Jan. 31, 1991.

Education: University of Oregon, 1947; University of Oregon Law School, 1951.

Professional Career: U.S. Army captain, 1943-1946; U.S. Army Reserve lieutenant colonel, JAG Corps, 1960-1969; private practice, Eugene, Ore., 1951-1955; judge, Oregon Circuit Court, 1955-1960; judge, Oregon Supreme Court, 1960-1969.

Stephen R. Reinhardt

Born: March 27, 1931, in New York City.

U.S. 9th Circuit Court of Appeals: Nominated by President Carter Nov. 30, 1979; confirmed by the Senate Sept. 11, 1980; received commission Sept. 11, 1980.

Education: Pomona College, 1951; Yale Law School, 1954.

Professional Career: U.S. Air Force, 1954-1956; law clerk for Luther W. Youngdahl, U.S. District Court, District of Columbia, 1956-1957; private practice, Los Angeles, 1957-1980.

Robert M. Takasugi

Born: Sept. 12, 1930 in Tacoma, Wash.

Federal Judicial Service: U.S. District Court, Central District of California: nominated by President Ford April 14, 1976; confirmed by the Senate May 6, 1976; received commission May 7, 1976; assumed senior status Sept. 30, 1996.

Education: UCLA, 1953; USC Law School, 1959.

Professional Career: U.S. Army corporal, 1953-1955; private practice, Los Angeles, 1960-1973; hearing examiner, Los Angeles Police Commission, 1962-1965; judge, Los Angeles Municipal Court, 1973-1975; judge, Los Angeles County Superior Court, 1975-1976.

Source: Federal Judicial Center