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A good judge of character

A conservative judge in one of America’s most liberal courts warns of encroaching partisanship

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Mark Owens for the Deseret News

Editor’s note: The Supreme Court on June 27 reversed 9th Circuit Judge Milan Smith Jr.’s school prayer ruling.

President George W. Bush appointed Milan Smith Jr. to the federal bench in 2006, though Smith would prefer I not mention that. Not because he has anything against Bush, but because of what such a connection implies in today’s highly partisan political climate. “There’s a presumption,” he explains, “on the part of many people, that if you were appointed by a particular president, then your rulings would be consistent with the political philosophy of the appointing president.” 

Smith has spent the past 16 years as a judge sitting on the California-based Ninth U.S. Circuit Court of Appeals, long considered a liberal court, trying to combat that perception. He believes viewing judges as political actors undermines the public’s faith in the country’s judicial system — a system that, historically, has been held in higher esteem than the executive and legislative branches of government. But confidence is falling, reaching a historic low in 2021 even before the leaked draft of the Supreme Court opinion poised to overturn Roe v. Wade entered the public consciousness. Smith thinks he knows why. 

It starts with the simple fact that Congress is impotent — “deadlocked,” to use his word — so new, sweeping legislative change is pretty much impossible and has been for some time. “So when people want to get things done,” Smith says, “if they can find a way to either reconstruct the statutes previously passed, or more importantly, if they can get the Constitution construed in a particular way to effectuate a policy change, they will far prefer to do it.” Politicians know this. That’s obvious in just about any Senate confirmation hearing for judicial nominees, both in terms of party-line votes and lines of questioning. “If you listen to the comments of the senators on both sides in the Senate Judiciary Committee, and the things that they go after people for,” Smith says, “it’s very clear that they’re treating these people as if they were political candidates.”

“Politicians will try to take the mantle of the Lord and wrap it about their shoulders, and claim that they speak for God.”

And that, he adds, is a dangerous trend. Judges have no armies to enforce their rulings. “We depend on what’s called moral-suasion,” he says, “and the goodwill of people.” In other words, judges can only interpret the law as long as people are willing to follow it. And the more people see judges as umpires rather than managers, the thinking goes, the more willing they will be. Instead, the reverse is happening. “The level of respect is declining,” he says. “And, in my view, at an alarming rate.”

At 80 years old, Smith has had a long time to ponder his viewpoint and draw that conclusion. Long before he attended BYU as an undergrad and the University of Chicago’s law school, he knew he wanted to follow in the footsteps of his storied family’s tradition and become a lawyer. And now, following a stroke of luck that landed him his current job, he’s still following a family tradition of moderation at a time when increasingly few are — though he hopes his example might light the way. 

Foundation forged

Smith’s destiny could be called preordained. As the great-great grandson of John D. Lee, he’s a member of the Lee-Udall political dynasty. His cousin, Mike Lee, represents Utah in the U.S. Senate, while his other cousins, Mark and Tom Udall, used to represent Colorado and New Mexico, respectively. Smith’s brother, Gordon, also served as a senator, representing Oregon from 1997 to 2009. It was Gordon who opened the door to Smith’s spot on the Ninth Circuit, but his approach to the bench starts all the way back with John D. Lee himself. 

At least, that’s his contention. His mother, Smith explains, instilled in him “an abhorrence of extremism. And part of that,” he adds, “ironically, can be traced back to our progenitor, John D. Lee, who was not a moderate.” Her teachings translated to what Smith now recognizes as “the golden mean,” a philosophical staple of the ancient Greeks. Popularized by Aristotle, the idea is to look for answers between deficiency and excess — for example, between cowardice and recklessness is courage. He’s also been exposed to a variety of perspectives in his own family; Lee and Smith’s brother, Gordon, are both Republicans, while both Udalls are Democrats. And as a longtime speedreader, Smith starts each day by reading The New York Times, The Washington Post, The Wall Street Journal and a local legal newspaper cover to cover. Sometimes he also peruses Fox, CNN and even Deseret — all in the name of expanding his understanding of the world. 

Those perspectives served him well over his long legal career, which included founding his own law firm and serving as vice chairman of the California Fair Employment and Housing Commission. The latter position ended up being consequential for his judicial nomination. While there, he helped secure legislation allowing sexual harassment victims to seek damages in the courts. California’s governor — then a Republican — vetoed the legislation. Smith, a longtime Republican and “moderate conservative,”  found the veto unconscionable and resigned. A decade and a half later, when he met with liberal U.S. Sen. Barbara Boxer ahead of his confirmation hearing, she pulled out a copy of that resignation letter. While she preferred a liberal nominee, he remembers her telling him that letter showed character and integrity, and she agreed to support his nomination — as did the rest of the Senate; he was confirmed 93-0. 

Smith’s legal philosophy — insofar as he has one; he believes the term to be an “oxymoron” because “if you’re following your oath, you don’t have a full legal philosophy in the sense that will guide your rulings” — could also be summarized by that resignation, and in one word: thoughtfulness. He recalls a talk by Hugh B. Brown, former first counselor in the First Presidency of The Church of Jesus Christ of Latter-day Saints, in which he interrogated the idea of “orthodox” belief. “He was less concerned with whether people were orthodox,” Smith remembers, “but rather that they were thinking; that they had thought something through.” So even though he’s conservative, he tries to leave that identity behind when evaluating a case, in order to be as thoughtful as possible. It’s an approach that, he admits, probably wouldn’t get him a federal nomination today. 

Not only because of the increased importance and scrutiny of judicial nominees in the absence of effective legislation, but because he wouldn’t pass a partisan loyalty test. “The principles that I grew up with as a young man, I still believe in them,” he says. “But the Republican Party today doesn’t stand for that anymore.” Nor, he adds, does the Democratic Party. Which is why, several years ago, he registered as an independent. I ask whether the goalposts have shifted in recent years regarding what it means to be conservative. “Oh, yes,” he says. “Absolutely.” 

Foundation shaken

To understand how the ground has shifted beneath him, consider a recent case that, as of this writing, is still under consideration by the Supreme Court: Kennedy v. Bremerton School District. The case involves a football coach at a public high school in Washington state named Joseph Kennedy who, after games, would pray at the 50-yard line. It became a spectacle covered on local television, among other places, and the coach ignored the school district when it told him to stop, in accordance with long-standing interpretations of the Constitution’s establishment clause. It became a culture war battleground, with conservatives rallying around Kennedy and against a government seeking to stifle his right to religious expression.  “I think that’s just the nature of the times in which we live right now,” Smith says. “Particularly on the right, politicians will try to take the mantle of the Lord and wrap it about their shoulders, and claim that they speak for God.”

Smith wrote the circuit court’s ruling siding with the school district. And in his opinion denying coach Kennedy a rehearing, he shared his own view on prayer: “I personally find it more than a little ironic that Kennedy’s ‘everybody watch me pray’ staged public prayers (that spawned this multi-year litigation) so clearly flout the instructions found in the Sermon on the Mount on the appropriate way to pray.” That, among other reasons, led Smith to what would surely be labeled as a “liberal” conclusion by the current cultural binary. But in Smith’s eyes, his Latter-day Saint faith was no impediment to this ruling. Rather, it offered him a very good view of why siding with Kennedy could actually be bad for religious freedom. “If somebody were requiring our children to study Buddhism or to recite the Quran, we would not be happy with that,” he says. And the same would be true of a Buddhist parent, for example, whose child was required to participate in Christianity in public school. 

Smith believes the Supreme Court will likely reverse his decision by overturning long-standing case law regarding public school prayer, “which is their right,” he says. But again, he believes that’s dangerous, regardless of how much conservatives like it. It makes judges look like any other politicians — and whether that’s generally true or not, it’s at least not what the judiciary should look like. Especially in light of the leaked opinion that could overturn Roe v. Wade. Smith didn’t want to comment on that since the ruling isn’t official yet, but his thoughts about the politicization of judges may, once more, prove instructive. “If the parties are successful in getting the judges to make what would normally be decisions reserved to the elected branches of government, people recognize that those judges are essentially performing the role of ‘politicians in black robes,’” he once said, “and must be scrutinized, criticized and checked just like political opponents would be.” So, too, with the religious freedom implications in the Kennedy case. “I worship the Lord,” he says, “but I worship the Lord privately. I’m not trying to force Latter-day Saint doctrine on the United States when it’s contrary to what the law is.” 

Despite the surrounding rancor, Smith remains optimistic about the future of the judiciary. Foremost, he says, because of his “decent, honorable” colleagues who he believes are overwhelmingly trying to do their best to interpret law outside partisan inclinations. But also because he basically has to; believing anything less would be to lack belief in the American experiment itself. Which is why Smith has no plans to retire. He has said he wishes to “die with my boots on” — ideally after a renewed public appreciation for the Constitution takes root. Despite its imperfections, he says, it provides the framework for a better world — as long as those tasked with interpreting it avoid partisan poisoning. “(The Constitution) was a great improvement over what had existed historically,” he says. “It’s continuing to improve. It has its problems. It develops. But I think the judiciary is really, really important in maintaining what we do have.”  

This story appears in the July/August issue of Deseret MagazineLearn more about how to subscribe.