Reading Reinhardt: the work of constructing legal virtue (exempla iustitiae).

• Author: Resnik, Judith

Is the California prison system so overcrowded as to require a reduction in population in order for the state to comply with its constitutional obligation not to be "deliberately indifferent" to the known medical needs of prisoners? (1) Is the phrase "under God," added in the 1950s to the Pledge of Allegiance, unconstitutional? (2) When does the First Amendment protect the speech of government employees? (3) How long can the federal government hold an immigrant in detention after that person is ordered to leave the United States? (4) These questions have come to the fore of constitutional jurisprudence in part through decisions by Stephen Reinhardt, appointed in 1980 by President Jimmy Carter to the U.S. Court of Appeals for the Ninth Circuit.

But to focus only on cases that have made headlines is to miss the bulk of Judge Reinhardt's work. According to one database, from January of 2005 through July of 2010, Judge Reinhardt participated in more than fifteen hundred decisions. (5) My reading of Reinhardt takes but a slice of this large corpus addressing human relations and legal obligations that is, as detailed below, a jurisprudence of facticity. His lengthy opinions are dense with the experiences of individuals who, while rights-holders, sometimes encounter inattentive judges and ineffective lawyers.

Yet, despite his own documentation of law's failures, Judge Reinhardt remains optimistic about law's power to cabin officialdom's misbehavior. Judge Reinhardt reads the U.S. Constitution as purposefully protective of individuals in their encounters with government. When doing so, Reinhardt is well aware that he lives in an era where, as he put it, many of his cohort prize "'efficiency' ... and 'judicial economy'" and therefore rebuff claimants in the name of those goals. Reinhardt instead argues that his--and other judges'--rulings ought to be animated by efforts to enhance "justice and liberty." (6)

Absent sustained ethnographic case studies of many judges and complementary econometrics, one cannot know how unusual Judge Reinhardt's output is. What can be seen is that his judgments illustrate the choices entailed in exercising the "judicial voice." (7) Judge Reinhardt's work thus provides a contemporary counterpart to what Renaissance Europe called "exempla virtutis"--allegorical narratives of a person's deeds exemplifying attributes seen as virtuous. A subset, "exempla iustitiae," identified traits particularly admirable for judges. (8)

What was desirable then? Renaissance justice stories stressed judicial loyalty to the state and subservience to ruling powers. Town halls were adorned, for example, with pictorial renditions of the Roman Brutus, who ordered the slaying of his own sons because of their treason against the Republic. Also portrayed was the Greek Zaleucus, who gouged out one of his own eyes as he also imposed that punishment on his son for violating the law. (9) The messages were autocratic and patriarchal, insistent on obedience to the law even at the cost of inflicting pain on one's family members and oneself. Moreover, whenever judges breached their obligations, kingly powers would mete out punishments to warn judges against going awry. Another regularly shown picture was that of a son forced to sit as a new judge on the skin of his father, who had accepted a bribe and was flayed alive at the direction of a ruler. (10)

Today, as democratic precepts have radically changed their obligations, judges are no longer posited as servants of the state but are, instead, admired for different traits. Judges are both prohibited from sitting in judgment of their relatives and protected from kingly oversight through norms of judicial independence. Further, judges must now listen to all persons and treat them fairly and equally. Yet the older idea--of virtue exemplified--remains a useful way to think about what one wants from judges. Below I examine different metrics by which to assess the voice, visibility, and jurisprudence of judges and explore the facets of Judge Reinhardt's decisions that make him worthy--per the Renaissance tradition--of imitation.

1. LEGAL PRESENCES AND ABSENCES

   Many Reinhardt decisions bring individuals into focus. One such person is Juan Antonio Perez, who came from Mexico "without inspection" into the United States and then sought asylum. (11) At issue was the legal import of Perez's belated arrival for his asylum hearing. To understand the doctrinal and theoretical import of the decision requires knowing what happened one morning in Los Angeles.

   Having appeared at his first immigration court proceeding in a timely fashion, Perez was late to a second hearing because "his car overheated in the middle of rush hour traffic." (12) After making his way by bus, Perez arrived two hours past the appointed time. As Judge Reinhardt recounts: "When Perez entered the courtroom, around 11:00 AM, the IJ [immigration judge] was still on the bench. Perez approached the IJ's assistant and handed her his notice of the removal hearing. At that moment, the IJ stood and left the courtroom." (13) The administrative assistant told Perez that the judge was "'done for the day'"--but as it turned out, not quite: on the same day, the immigration judge ordered Perez "removed in absentia." (14)

   Was Perez absent? Is that a physical fact, a psychological (if not existential) experience, a discretionary judgment, or a legal ruling? Non-lawyers might not pause long over these questions, for absence is commonly understood to be the antithesis of presence, (15) and Perez and the immigration judge shared a physical space--the same courtroom--on the day of the hearing.

   Yet "in absentia" is also a legal concept, encountered with some regularity in the criminal context. Under the Federal Rules of Criminal Procedure, a trial cannot proceed if a defendant is not present at its beginning, (16) and hence courts have debated how to respond to no-shows, as well as whether to draw distinctions between a defendant's "flight before and flight during a trial" (17) or thereafter. The current doctrine is that courts may decline adjudication if defendants flee while appeals are pending. Thus, a defendant loses whatever claims existed. (18) But that sanction is to be mitigated if the legal claims of a "former fugitive" are unrelated to the flight. (19)

   Unlike trials, with confrontation and presentment rights requiring physically present participants, appellate review does not directly involve litigants, who often do not attend oral arguments. Why, then, impose sanctions for a criminal defendant absent when an appeal is to be decided? Enforcement of judgments is one answer. Were an appellate court to uphold a conviction and sentencing or to reverse and remand for new proceedings, neither judgment could take effect without a defendant. (20) Courts dismissing "fleeing fugitive appeals" also explain their holdings in terms of deterrence and an "interest in efficient, dignified appellate" process (21) that would be undermined by the "disrespect" of flight. (22)

   Yet these various concerns are to be balanced against the potential that the loss of appellate review could result in a person "serving a sentence that under law was erroneously imposed." (23) Orderly process, procedural regularity, and respect for the institutions of adjudication could well demand a litigant's presence, but draconian penalties sometimes must be limited so as to focus on the underlying legality of decisions. On occasion, the Supreme Court has vacated the dismissal of an appeal based on the absence of the appellant. (24)

   How might these ideas be translated into the immigration context, conceived as a "civil" rather than a "criminal" proceeding? What are the stakes in refusing to hear a person who has absconded, as contrasted with one who is present but late to a hearing? What magnitude of discretion ought to be accorded administrative judges?

   These questions, exemplified by Perez, are moored in federal statutes that require appearances and recognize limited justifications for absences. Upon a failure to appear, a person shall "be ordered removed in absentia if the [Immigration] Service establishes by clear, unequivocal, and convincing evidence that ... written notice [of the hearing] was ... provided and that the alien is removable." (25) A removal order precludes not only an opportunity to raise legal claims to remain but also the possibility that an immigration judge could authorize a "voluntary departure." For those permitted to depart voluntarily, return under certain circumstances may be available, whereas a removal order can bar reentry for ten or more years. (26) But even if a person is found to have been "in abstentia," reopening is an option under "exceptional circumstances," defined as those beyond the immigrant's control and exemplified in the statute by "battery or extreme cruelty" or "serious illness" befalling an immigrant or her immediate family, and by no "less compelling circumstances." (27)

   The statute speaks of failures to appear but not belated arrivals. One could, however, read the words "appear" to mean that the alien must appear at a time fixed, rather than as being physically present in the appointed place. In immigration decisionmaking, "in absentia" appears (to borrow that word) to have taken on that meaning and to be regularly conflated with being late--albeit without much by way of statutory interpretation or reference to the law on fleeing fugitives. Reported decisions by the Board of Immigration Appeals (BIA) rely on tardiness to order removal "in absentia." (28) Appellate courts sometimes reverse (by delineating factors constituting "mitigating circumstances" to distinguish a particular lateness from ordinary "tardiness"(29)), while at other times they approve the administrative removal orders. (30) Given the reported decisions, data from the Executive Office for Immigration Review--that thirty-nine percent of noncitizens...