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The Law's Conscience

How Judge Harry Pregerson of California's 9th Circuit, rules with his heart instead of his head.

12:00 AM, Sep 19, 2003 • By HUGH HEWITT
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THERE IS A GREAT DEAL of analysis on the California recall court case, with some of the best available at the blogs of Loyola law prof Rick Hasen, University of Iowa law prof Tung Yin, and the SoCalLawBlog . These sites don't mince words when it comes to the reputation and record of the 9th Circuit, and the Monday decision's display of judicial willfulness. So much time is spent dissecting the panel's per curiam opinion, however, that too little attention is paid to the three judges who produced it.

I will leave it to others to provide the lengthy specs on judges Richard Paez and Sidney Thomas--Clinton appointees both. (Those should be interesting pieces: Judge Paez, for example, trained as an activist in his legal career before taking the oath and joining the Bench, serving as a lawyer at the Western Center on Law & Poverty and with California Rural Legal Assistance. He also served a long stretch in the judicial confirmation process, waiting four years between the time of his nomination to the circuit and his confirmation.)

The third justice is 79-year-old Justice Harry Pregerson. His service to the country preceded his time on the bench. He was a lieutenant in the United States Marine Corps from 1944 to 1946. He was severely wounded during the battle for Okinawa. Justice Pregerson obviously does not lack for courage.

Nor has he ever lacked for candor. On October 3, 1979, the day of his confirmation hearing, then Federal District Judge Pregerson was questioned by then Senator Alan Simpson. Here is the exchange:

Simpson: If a decision in a particular case was required by case law or statute, as interpreted according to the intent that you would perceive as legislative intent, and yet that offended your own conscience, what might you do in that situation?

Pregerson: Well, of course it's a hypothetical question and life does not present situations that are clear cut, but I think all of us, judges and lawyers, would be very pleased if congressional intent was clearly discernible. I have to be honest with you. If I was faced with a situation like that and it ran against my conscience, I would follow my conscience.

Simpson: I didn't hear, sir.

Pregerson: I said, if I were faced with a situation like that, that ran against my conscience, disturbed my conscience, I would try and find a way to follow my conscience and do what I perceived to be right and just. Not that, I would hope not, it would mean I would act arbitrarily. I was born and raised in this country, and I am steeped in its traditions, its mores, its beliefs, and its philosophies; and if I felt strongly in a situation like that, I feel it would be the product of my very being and upbringing. I would follow my conscience.

The Marine did not dissemble. And the Senate did not block his confirmation. Not surprisingly, Judge Pregerson has been a model of judicial activism for nearly a quarter-century. In one memorable case from 1988, the panel on which he served reversed a judgment granting a petition for naturalization to a veteran who had, sadly, not applied for citizenship at the appropriate time. The case was "squarely controlled by the Supreme Court's recent decision," and the majority was obliged to deny the veteran citizenship.

Judge Pregerson dissented: "I dissent. The conscience of our nation should tell us that Dr. Bernardo Ortega deserves better treatment from a government he valiantly served in time of war."

The law was explicit, and the Supreme Court had authoritatively applied it, but Judge Pregerson relied upon the "conscience of our nation" to avoid the law's command. A broad concept, that national conscience, and one untethered to any rule of law.

Just like Monday's decision.

THE TEMPTATION for all people in public life is to preach to their choirs, and to remind others of their virtues. This particular temptation seems to grow more terrible as age advances and the crowds that provide applause do not gather as often or in such great numbers as in the past. Often these audiences need cues. Sometimes those cues have to be loud: A decision striking down the Pledge of Allegiance as unconstitutional, for example, or evicting the Boy Scouts from a Sea Scout base they built and maintained for decades in San Diego's Balboa Park.

There is nothing quite as loud as the cancellation of an election called for under the black-letter law of a state constitution. Such things have happened in our hemisphere before, but not within our borders.