Tuesday, January 20, 2004

Kozinski Quotables

From his dissent in Jahed v INS:

"The question in this case is, in the immortal words of Humpty Dumpty, which is to be the master—that’s all. When it comes to the granting of asylum, Congress has said the BIA is the master. The statute provides it, the other courts of appeals recognize it and the Supreme Court keeps reminding us of it. But to no avail. Maybe there’s something in the water out here, but our court seems bent on denying the BIA the deference a reviewing court owes an administrative agency. Instead, my colleagues prefer to tinker—to do the job of the Immigration Judge and the BIA, rather than their own.

. . . We know such things much better than the IJ and the BIA, so we’re going to find the facts ourselves. But, isn’t this what we got slammed for just last Term? Well, never mind. The government can’t bother the Supremes every time we go over the top, so it’s a fair bet that if we keep marching to our own drummer we’ll mostly get away with it."

Judge Cassandra, I mean, Kozinski, has been making these arguments for a long time, but few in the Ninth Circuit listen. He's a little more direct here, though - accusing Judge Trott (a Reagan nominee) of defying the Supreme Court because he thinks he can get away with it is no small thing.

I'm not sure if Judge Trott deserves Kozinski's charge, but it's certainly true of other judges on the circuit. When you have an ends-based judicial philosophy, you're going to have to stretch sometimes to get what you want. Republican judges are guilty of this too - Judge Kozinski in takings cases, for example. But the Supreme Court hasn't given the same signals on takings as they have on agency deference, and at some point "distinguishing" around Supreme Court cases will just become nihilistic. Perhaps Ninth Circuit judges should ask themselves "what would the Supreme Court do?" along with "what didn't the Supreme Court say?" and take the former into account at least as much as the latter when coming to a result. (from How Appealing)

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