I was the “clerk who had gone bad,” U.S. Ninth Circuit Judge Stephen Reinhardt used to say to me (and probably say about me as well). I had clerked for him from 1985 to 1986, right out of Stanford law school, when my default politics were more in line with his own strong liberalism. I gradually changed my worldview, and he was not uninhibited about pointing out the many ways in which I was now profoundly misguided. But he always did so with a mischievous chuckle and affectionate sidelong glance, as if testing to see if he had gone too far.
Reinhardt, who died on Thursday of a heart attack at 87, represented old-school liberalism in his ability to tolerate different points of view. Several years ago, I wrote an article critical of his decision to put the California prison system under his and two fellow jurists’ judicial control. I assume that he saw it; I had been in contact with another of his prior clerks about the issue. He never brought it up.
That tolerance contrasts sharply with a Stanford law professor, once a friend and mentor, who treated my invitation to get together for lunch last summer with as much enthusiasm as one would greet a shipment of the Ebola virus. Meanwhile, I was regularly going up to Union Station in Los Angeles from Irvine to meet Judge Reinhardt for lunch, where he would greet me with a huge bear hug and proceed to berate me for not understanding the persistence of systemic racism. We figured out a way to disagree amicably, something my former professor has apparently never learned.
Judge Reinhardt’s commitment to linguistic precision helped clean up my own prose, which had been encumbered by the fetid stew of High Theory that I had imbibed in college and law school. We would comb through drafts of his opinions in the kitchen of his sylvan home in Los Angeles’s Pacific Palisades as evening fell. He scrutinized each word, marking the deletions and additions in his tight-penciled script. He insisted on the traditional impersonal “he” in the face of my knee-jerk demand for the feminist he/she usage—a battle he continued to wage, he told me, in the face of equally determined clerks thereafter.
At recent lunches, knowing my love of classical music, he would regale me with tales of his family’s estate in Salzburg, the product of his family connection by marriage to early twentieth-century theater director Max Reinhardt. And we would sometimes discuss the fallacies of radical feminism. “One of the things no one wants to talk about,” he said, “is the difference between the male and female libido. The whole structure of society once recognized that males are more sexually aggressive than females.”
Reinhardt’s legendary friendship with fellow Ninth Circuit judge and libertarian Alex Kozinski was an even stronger example of his ability to transcend political difference. Kozinski used to call Reinhardt’s chambers and ask to speak to the “world’s greatest jurist.” The #MeToo scourging that led to Kozinski’s early retirement from the bench pained Reinhardt deeply. “Judges are so goddamned stuffy today,” he said; the unbuttoned Kozinski was a breath of fresh air, and one of the best, most decent, and smartest people he knew.
Reinhardt scrutinized every appeal by a criminal defendant with extra care, holding the government to the highest standard of due process. If the government rarely met that standard, Reinhardt would say that the fault lay with the criminal justice system. He inspired all those who worked for him to try to avoid the same judgment.
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