Judge Harry Pregerson of the U.S. Court of Appeals for the Ninth Circuit recently took senior status. That means he may still sit on three-judge panels but will no longer participate in the court's decisions to rehear a particularly important case before an 11-judge panel or sit on such larger panels. Maura Dolan has this article in the L.A. Times. It is mostly favorable, as articles on such occasions tend to be, but there is one dissenting view expressed.
The headline is, "Judge Harry Pregerson, leaving the bench at 92, always followed his conscience." Sounds nice, doesn't it? I mean, who could criticize a person for following his conscience? Well, there is a big difference between "conscience" suomenapteekki24 in personal conduct and "conscience" as used in this context. Here, "conscience" is little more than a high falutin word for "opinion." On matters of great public controversy, both sides believe they are right, and a judge who decides on the basis of which opinion he agrees with rather than on the basis of the law is acting as a dictator, not a judge.
The headline is, "Judge Harry Pregerson, leaving the bench at 92, always followed his conscience." Sounds nice, doesn't it? I mean, who could criticize a person for following his conscience? Well, there is a big difference between "conscience" suomenapteekki24 in personal conduct and "conscience" as used in this context. Here, "conscience" is little more than a high falutin word for "opinion." On matters of great public controversy, both sides believe they are right, and a judge who decides on the basis of which opinion he agrees with rather than on the basis of the law is acting as a dictator, not a judge.
Dolan notes, "Prosecutors often privately complain about Pregerson." Fortunately, I am not a prosecutor, and I can say in public what so many other advocates for justice have to keep private.
But shouldn't I say something nice on this occasion? Okay. Thank you, Judge Pregerson, for postponing your taking of senior status until the twilight of President Obama's administration, when there is little chance he will get to fill the vacancy. The next President will almost certainly be at least somewhat better and hopefully will be a great deal better. In this timing, you have done a worthwhile public service.
"Judge Pregerson has been a reliable and reliably wrong vote to overturn death sentences in nearly every capital case he has sat on," said Kent Scheidegger, legal director of the pro-death penalty Criminal Justice Legal Foundation.Of course a general circulation newspaper like the Times doesn't print the citations that support the "reliably wrong" assertion. Here is my full statement:
He called the judge's departure from active status "good news for the victims of crime and the cause of justice."
Judge Pregerson is best known for the notorious stay of the execution of Robert Alton Harris after the U.S. Supreme Court lifted a previous stay. This audacious act caused the high court to issue an order that no federal court but itself would issue any more stays in the matter, something it has never needed to do before or since.In a democracy, laws are made by the majority through the democratic process. A judge who disregards or evades laws he personally disagrees with is a dictator. He may frame that decision in terms of "conscience." He may claim to be protecting the Constitution. In reality, though, disregard of a democratically enacted law that is within the legislative power as originally understood is the most fundamental of all constitutional violations. The people's right to enact their collective judgment about justice into law is constitutional right number one, and a judge who substitutes his own opinion for theirs is engaging in an abuse of power and a violation of a constitutional right every bit as wrong as any abuse committed by the executive branch. In cases of extreme or repeated abuses, it should be an impeachable offense.
Since Harris, Judge Pregerson has been a reliable and reliably wrong vote to overturn death sentences in nearly every capital case he has sat on. See Jeffers v. Ricketts, 832 F.2d 476 (9th Cir. 1987), reversed Lewis v. Jeffers, 497 U.S. 764 (1990); Visciotti v. Woodford, 288 F.3d 1097 (9th Cir. 2002), reversed summarily and unanimously Woodford v. Visciotti, 537 U.S. 19 (2002); Payton v. Woodford, 346 F.3d 1204 (9th Cir. 2003), reversed Brown v. Payton, 544 U.S. 133 (2005); Comer v. Schriro, 463 F.3d 934 (9th Cir. 2006), reheard en banc and decided the other way 480 F.3d 960 (2007); Pinholster v. Ayers, 590 F.3d 651 (9th Cir. 2009), reversed Cullen v. Pinholster, 563 U.S. 170 (2011); Hoffman v. Arave, 455 F.3d 926 (9th Cir. 2006), vacated in part summarily and unanimously Arave v. Hoffman, 552 U.S. 117, 128 S.Ct. 749 (2008); Thompson v. Calderon, 120 F.3d 1045 (9th Cir. 1997), reversed Calderon v. Thompson, 523 U.S. 538 (1998); Moran v. Godinez, 972 F.2d 263 (9th Cir. 1992), reversed Godinez v. Moran, 509 U.S. 389 (1993); Summerlin v. Stewart, 341 F.3d 1082 (9th Cir. 2003), reversed Schriro v. Summerlin, 542 U.S. 348 (2004); Cox v. Ayers, 613 F.3d 883 (9th Cir. 2010) (dissent in case where two other Democrat-appointed judges voted to affirm, case of the man who murdered Kermit Alexander's family). That's probably not a complete list, but you get the idea.
Judge Pregerson is a result-oriented judge who bends over backwards to prevent the execution of richly deserved sentences for the very worst murderers. He is a substantial part of the reason the Ninth Circuit has the terrible reputation it does. His departure from active status is good news for the victims of crime and the cause of justice.
But shouldn't I say something nice on this occasion? Okay. Thank you, Judge Pregerson, for postponing your taking of senior status until the twilight of President Obama's administration, when there is little chance he will get to fill the vacancy. The next President will almost certainly be at least somewhat better and hopefully will be a great deal better. In this timing, you have done a worthwhile public service.
"The people's right to enact their collective judgment about justice into law is constitutional right number one, and a judge who substitutes his own opinion for theirs is engaging in an abuse of power and a violation of a constitutional right every bit as wrong as any abuse committed by the executive branch. In cases of extreme or repeated abuses, it should be an impeachable offense."
Well-said. I would add that he has earned the white-hot hatred of victims families that he helped punish more than a killer already did. It is a sad sad commentary on our legal system that the bar is not utterly ruthless in criticizing lawless "judges" like Pregerson.
Justice Traynor said a judge must bring to his labors a "cleansing doubt of his own omniscience," known "euphemitically as the courage of one's convictions." This hardly describes Pregerson--or a great many other judges, proud to "enact" their own predilictions through judicial decision.