Speaking in tongues - Ninth Circuit Court of Appeals Judges Alex Kozinski and Stephen Reinhardt

National Review, Nov 6, 1995 by Harold Johnson

Some lawyers call it the "Steve and Alex Show" -- the occasional stylized jousting between two heavyweights on the Ninth Circuit Court of Appeals, the federal appellate authority for California and eight other Western states.

On the Left: Judge Stephen Reinhardt, champion of an unrepentantly activist-liberal jurisprudence, husband of the head of the Southern California ACLU, outspoken foe of the death penalty whose last- minute delaying decree in one celebrated case provoked a midnight order from the Supreme Court to knock it off so the execution could go forward.

On the Right: Judge Alex Kozinski, toast of many a Federalist Society banquet and libertarian potluck, give-no- quarter defender of the free market, emigrant from Rumania at age 11, one of the brainiest of the judicial stars raised to the bench by Ronald Reagan and Edwin Meese -- and, when he got the job at age 35, the youngest federal appellate judge in this century. Maybe even more important, a Nintendo game reviewer and an accomplished magician with membership in the Magic Castle in Los Angeles, the elite club for prestidigitators. (Hence one more difference between him and liberal jurists: He pulls rabbits out of hats, not out of penumbras and emanations.)

For the most part, the sparring between these two eminences, if sometimes seasoned with sharp sarcasm, has been governed by decorum and expressions of respect. That fact made it even more jarring recently when Reinhardt, writing a special concurrence to his own majority opinion in a close decision, tossed Queensberry rules to the wind and became a geyser of vitriol.

"Judge Kozinski callously ignores the interests of people. . . ."

"Not a word of concern for the less fortunate among us finds its way into Judge Kozinski's opinion."

"Judge Kozinski trots out a parade of horribles that he insists will come to haunt us if we do not accept his absolutist, authoritarian view. All his examples are absurd."

The issue that called down this brimstone? In a word, words. What words, if any, can taxpayers, as the ostensible employers of government workers, require those workers to speak and write in their official capacity? The 11-member appeals court was ruling on Arizona's Official Language amendment to the state constitution. Enacted by Arizona voters in 1988, it declares English the state's official tongue and requires "the state and all political subdivisions to act in English and in no other language."

Unconstitutional! thundered the Ninth Circuit majority in the 6 to 5 decision. The free-speech rights of public employees are trampled by forcing them always to do their business in the nation's predominant tongue. An English-language requirement also "unduly burdens" the "speech interests of a portion of the populace they serve," Judge Reinhardt wrote.

It was Kozinski's laser-like dissent -- honing in on the ruling's disruptive implications for the relationship between government and its employees, and on the radical contortion of the First Amendment -- that caused Reinhardt to lose his cool.

As it happens, Reinhardt himself has a number of people steamed, beginning with Robert D. Park, director of English Language Advocates in Scottsdale and the leader of the drive to enact the official-language measure. "This decision is a slap at the voters of Arizona," he complains, "a denial of their right to set reasonable rules for operating the government agencies they underwrite."

Tilting lances with the establishment is nothing new for Mr. Park. All Arizona's major newspapers and nearly all the state's prominent politicians opposed the initiative (one exception was Barry Goldwater, who served as honorary chairman of the campaign). Although former Sen. S. I. Hayakawa of California came to stump for it and the Washington-based lobby U.S. English provided financial help, the real engine was an enthusiasm at the grass roots. Still, after a torrent of publicity for opponents in the campaign's closing days, the proposal just squeaked onto the books, with 50.5 percent of the vote.

A group of lawyers who had opposed the Official Language act immediately headed to federal court, recruiting as plaintiff a state insurance-claims processor named Maria-Kelley Yniguez. She had been producing some of her official reports in Spanish (though her supervisor understood only English), and she argued that the English-only rule unconstitutionally gagged her.

A federal district judge agreed, and the governor at the time, Democrat Rose Mofford, declined to appeal. Unwilling to let his cause die for want of a defender, Robert Park stepped forward. He has been the principal litigant to uphold the law from that time forward. (The current governor, Republican Fife Symington, had opposed the measure during the campaign for its enactment, and apparently he hasn't changed his mind since taking office; he has not filed an amicus brief in its defense.)

Several state legislators have lined up with Park, however, including Don Aldridge, Republican speaker pro tem of the House. He cites a citizenship swearing-in ceremony in Arizona last year that was conducted largely in Spanish; he worries that the failure to promote English proficiency is marginalizing many Hispanics.