Tension Over Court’s Pledge Ruling Defused

SAN DIEGO —  It was 6 p.m. at the opening session of the 9th Circuit’s annual judicial conference, and all eyes were on the stage, where a naturalization ceremony had just taken place.

“For many of us, it’s traditional to recite the Pledge of Allegiance” following such a ceremony, said the emcee, federal trial judge Michael R. Hogan, prompting chuckles.

As the crowd uttered the familiar words Monday evening, there was no diminution in volume during the clause “under God.”

Among those taking part was Judge Alfred T. Goodwin, dressed in a blue polo shirt and black cowboy boots.

“It’s not a schoolhouse, you can say anything you want,” he quipped to a reporter.

These days, the Pledge of Allegiance is hardly a laughing matter for the U.S. 9th Circuit Court of Appeals. On June 26, a sharply divided panel headed by Goodwin ruled 2 to 1 that compelling students to recite the words “under God” is an unconstitutional endorsement of religion. The decision, which has been put on hold pending an appeal, precipitated a firestorm of criticism nationwide, including sharp words from President Bush and a 99-0 vote of condemnation by the Senate.

Despite the controversy, which has included pickets outside his second home in Pasadena, Goodwin seems unruffled. “I’ve had a great life as a judge, including the last three weeks,” the Nixon appointee said.

Although the pledge debate is clearly an undercurrent at the annual conference, the gathering at the plush Loews Coronado Bay Hotel does not have the air of a siege.

Just last Friday, Sen. Frank Murkowski (R-Alaska), a longtime critic of the appeals court, introduced legislation that would split the nine-state circuit--the nation’s largest--into two. But several members of the court, including former chief judge Procter Hug Jr., say they are confident that won’t happen.

Indeed, one frequent topic of conversation has been the fact that the 9th Circuit does not have enough judges. Chief Judge Mary M. Schroeder, in her keynote address, lamented the fact that there are five vacancies on the 28-judge court. Nonetheless, she declared, “The state of the circuit remains excellent.”

The pledge has hardly been the only topic of conversation at the conference, where participants have been schmoozing with compatriots between panels on such weighty topics as civil liberties in an age of terrorism.

On Tuesday morning, former U.S. Secretary of State Warren M. Christopher and former FBI and CIA director William H. Webster appeared at a session entitled “These Uncertain Times: An Interactive Panel on National Security and Civil Liberties in the Wake of the 9/11/2001 Terrorist Attacks.”

Christopher, an appointee of President Bill Clinton, expressed dismay that the federal government has kept secret the identity of hundreds of individuals detained in connection with investigations of terrorism. “I remember going to Argentina and mothers protesting in the streets asking the government where it was holding people, those who had disappeared,” Christopher said. “We must be very careful in this country about taking people in custody without revealing their names.”

He said the names should be made public so relatives will know where they are and can seek legal assistance.

Webster, a Republican appointee, expressed reservations about President Bush’s creation of military tribunals that could try terrorism suspects in secret. Webster said it might be appropriate to have such trials when someone was captured in a foreign country, but not in the U.S. “We still have a good [judicial] system,” Webster said.

Assistant Atty. Gen. Viet Dinh, who heads the Justice Department’s Office of Legal Policy, countered that the administration is following proper legal principles and that all detainees have been given the opportunity to speak to family members or an attorney.

At another panel on civil liberties during earlier crises, 9th Circuit Judge A. Wallace Tashima and Los Angeles Police Commission member Rose Marie Ouchi described the wrenching personal experiences they and their families experienced when they were uprooted from their Los Angeles homes and taken to internment camps after Japan attacked Pearl Harbor in 1941.

The civil liberties debate and the undercurrent of the pledge brouhaha have made the normally staid conference a rather lively affair.

The closely watched naturalization ceremony was planned long before the ruling in the pledge case. Hogan, an affable 55-year-old jurist from Eugene, Ore., proposed the ceremony a year ago after conference planners decided that immigration issues should be among those featured at the gathering near the U.S.-Mexican border.

Many of those gathered, including one of the conference’s special guests, Supreme Court Justice John Paul Stevens, held small U.S. flags that were distributed as they entered the ballroom.

The mood was festive but with an air of anticipation. What would Hogan say after the crowd loudly applauded the 26 new Americans--whose native countries range from Iran to Luxembourg--who had solemnly sworn that they would “bear true faith and allegiance” to their new homeland?

Hogan, who was appointed by President Bush’s father in 1991, had a delicate task--introducing the pledge without aggravating the controversy.

As a Marine Corps band stood at attention, Hogan said that he respected all the judges of the 9th Circuit, even when they were at odds. “One of the things that’s great about our country is that we can disagree and still respect one another,” he said.

Then he told the several hundred people in the crowd that it was up to each of them to choose just how to say the pledge. “We need to decide for ourselves what words are appropriate,” he said.

The crowd rose collectively. It was over in a matter of seconds. Then, after a stirring rendition of “America the Beautiful” by a San Diego lawyer, the audience adjourned for cocktails and dinner.

Hogan was congratulated by many for deftly handling his potentially awkward task. Outside the ballroom, he chatted briefly with Goodwin, a fellow Oregonian whom he described as “a good friend.”

For his part, Goodwin, 78, said he was somewhat surprised at how vociferous the reaction to the pledge decision has been. He attributed some of the outrage to the changed climate after Sept. 11.

“There’s anxiety. There’s fear. And it’s an even-numbered year,” he said, referring to the fact that there will be congressional elections in the fall.

After listening attentively to the civil liberties panel Tuesday morning, Judge Stephen Reinhardt, who joined Goodwin’s opinion and is the most outspoken liberal on the court, said he was taken aback by the gravity of the reaction.

“I can’t think of any other decision where Congress immediately condemned a court decision,” Reinhardt said.

The dissenting judge on the pledge panel, Ferdinand Fernandez, is not attending the conference, court officials said.

Neither Goodwin nor Reinhardt is making any predictions about what will happen next in the case. The Elk Grove School Board has said it will ask for a rehearing, and the Justice Department has indicated that it will file a friend-of-the-court brief urging reversal. There is a widespread feeling here, expressed by, among others, ACLU national president Nadine Strossen, that the decision will be overturned.

Moreover, there is a possibility that the case could fade away without a further ruling. Last week, the mother of the schoolgirl who is at the center of the suit hired her own lawyers to inform the public that she and her daughter are Christians who do not agree with the decision. The girl’s father, Michael Newdow, who filed the suit on her behalf, is an atheist and is not married to the mother.

Legal experts said it was possible that if a court decides that the mother is the true representative of the girl and wants to drop the case, it could be made moot. However, that involves complex legal questions that may not be resolved for months.

Not surprisingly, Goodwin has drawn a lot of questions about the case at the conference. Until the matter came before him, he said, he had not given a great deal of thought to the pledge, which was changed to include the words “under God” in 1954, one year before he was first appointed to a state court judgeship in Oregon.

Goodwin said he has presided over many naturalization ceremonies and, “Usually I ask one of the new citizens to lead the pledge because they have been memorizing it. To me [the added words “under God”] were kind of a blip in the poetry of the pledge.”