"See, for example, the words of former Governor Sarah Palin of Alaska: 'If [the Pledge] was good enough for the founding fathers, its [sic] good enough for me....'"

Those words appear in Palin's Gubernatorial Candidate Questionnaire, Eagle Forum Alaska, July 31, 2006. In his dissenting opinion in the new 9th Circuit case upholding the constitutionality of the Pledge of Allegiance, Judge Reinhardt cited Palin's words in a footnote in support of the proposition that "some individuals" don't know their history:

For many Americans, the current version of the Pledge is the only version they have ever known. Some individuals not familiar with our political history may even be under the impression that its language dates back to the founding fathers.

Orin Kerr sees the hand of a smartass clerk:

I think it’s notable when a federal court of appeals judge with a well-established political view picks up a meme from political blogs and pokes fun at a politician on the other side in a pretty gratuitous way. It also screams “law clerk idea.” If you don’t think that’s notable, then I suppose we’ll just have to disagree.

A Kerr commenters defends Palin. DrGrishka says:

Reinhardt’s citation is misleading. The question to which Sarah Palin responded read:

11. Are you offended by the phrase “Under God” in the Pledge of Allegiance? Why or why not?

The answer was

Not on your life. If it was good enough for the founding fathers, its good enough for me and I’ll fight in defense of our Pledge of Allegiance

It could be that she gave a stupid answer in which the “it” referred to the Pledge itself. That would be historically inaccurate. But the “it” could have just as easily referred to the phrase “under G-d.” If so, the answer would be completely plausible as founding fathers used such phrases all the time.

And Palin's task at hand was to be an effective political candidate, and that is not about parsing the question and saying the most technically correct thing. People who assume they are smarter than Palin need to perceive the contextual dimension of intelligence. Are you smart at doing the thing you are currently trying to do or smart in the abstract? Because life is not in the abstract, and the people who are smartest in the abstract are not the ones who win political power. Reinhardt/his law clerk was overconfident, perhaps, in his own intelligence and failed to pay attention to the context in which he was operating, a judicial opinion. Fortunately, the political process is pretty good at filtering out individuals afflicted with this form of stupidity. But if they have life tenure, as judges do, we are stuck with it. And yet, Reinhardt needed votes too, and here we see he is writing in dissent, having lost.

Another commenter, footnoter, says:

What a sad reflection on Reinhardt. When a judge gets to doing this, it’s past time to hang up the spurs.

On the topic of a 133-page dissent with its own table of contents, on a rather simple issue, I’m reminded of EZ Rider’s dictum: “simple arguments are winning arguments; convoluted arguments are sleeping pills on paper. . . . when judges see a lot of words they immediately think: LOSER, LOSER. You might as well write it in big bold letters on the cover of your brief”

[I]magine if Judge Bybee or Justice Scalia said “we have 50 states– a fact unknown to some Americans in power” with a footnote saying “see, e.g., President Obama’s remarks he had visited ’57 states.’”

What if the other side had done the equivalent? That question pops up so often these days.