Wednesday, December 05, 2012

U.S. v. Hernandez-Estrada (9th Cir. - Dec. 5, 2012)

Want to know why it matters to nominate federal appellate judges who are smart?  Read Chief Judge Kozinski's brief concurring opinion in this one.

Truly smart people know when a doctrine simply makes no sense.  Even when that doctrine might support results that you would otherwise prefer.

And smart judges with integrity -- a subset of smart judges -- are willing to call nonsense nonsense when that's what it is.

I actually think that quality may be more present in places like the Ninth Circuit as compared to, say, the Supreme Court.  Not that there aren't incredibly smart people on the Court.  There are.  But they are also sufficiently smart and results-oriented -- perhaps corrupted (in part) by power -- to be willing and able to submit purported justifications for objectively silly rules.  Like this one.

I disagree with Chief Judge Kozinski a nontrivial amount.  But thoughts like this one keep the guy close to my heart.

Now let's see if they actually try to take the thing en banc.