Legal Realism and the Press (II)

Sandy Levinson

Lyle Denniston, the dean of Supreme Court reporters (and someone whose writing I've long admired), posted a long and thoughtful reply to my previous post. I am taking the liberty of answering it in a "full-scale" posting of my own, given the importance of the issues raised.

Mr. Denniston believes that "most of the nation's leading news outlets have for years been wrong -- from the perspective of journalism -- on the subject of identifying the president, the president's party affiliation, and, if known, the party affiliation of the federal judge when a newsworthy opinion emerges.... This pattern of partisan identification of judges invites the reader -- and this is well known in newsrooms -- to conclude that the judge is probably incapable of detachment from partisan instincts or habits, and thus will predictably toe the party (or the White House) line."

Although I agree that there is some danger that readers will have such unsophisticated views triggered by the reporter's supplying of the mentioned information, I think that the cue being sent is considerably more subtle. There is no plausible argument, for example, that an appointee of Presidents Carter, Reagan, George H.W. Bush or Bill Clinton will be motivated to meet the expectations of their appointing presidents, who, among other things, can do nothing to help or hinder their future prospects. But that's not really the point: As Jack Balkin and I have argued, there is now overwhelming evidence that presidents generally make their judicial appointments to assure what we call the "partisan entrenchment" of the judiciary, where "partisan" is defined in terms of a sincere and genuine commitment to the constitutional vision of the party in power. There are increasingly distinct "Democratic" and "Republican" views of the Constitution with regard to a number of important issues, as demonstrated in recent scholarship by my colleagues Scot Powe and HW Perry and elsewhere by Clayton and Pickerell.

I note, for example, that a story in today's NYTimes concerns the appointment by Gov. George Pataki of a fifth Republican to the New York State Court of Appeals (NY's highest court, which has a total of seven members) even though that required turning down a request by the one African-American on the Court, appointed by Mario Cuomo, for reappointment. As the Times noted, the judge would have to retire next year, at the age of 70, and that would open a vacancy for presumptive Democratic Governor Spitzer. Pataki, undoubtedly lying through his teeth, said that he was unaware until the end that his appointee was a Republican, but he admitted that he wanted to make sure that judges who shared his (Pataki's vision) would be able in effect to lock up the Court at least until 2012, the first time that a Democratic governor would be able to have appointed a majority of the court. He clearly believes that he can predict with some accuracy the likely voting patterns of the judge in question with regard to the issues Pataki most care about.

There is nothing particularly new in attempts at such partisan entrenchment. After all, the background of Marbury v. Madison is the Federalist attempt to seize control of the federal judiciary as a way of staving off the hated Jeffersonian takeover of the White House and Congress. But one can argue that modern presidents have become considerably more sophisticated in identifying candidates for the judiciary who share their agendas, and that they have become considerably more sophisticated as well in discerning the importance of appointments to what the Constitution callsl the "inferior" appellate and district judges who, functionally, are far more important for most Americans than the Delphic oracles in Washington. Moreover, one of the less edifying aspects of the contemporary federal judiciary is the patent "auditioning" by district and courts of appeals judges for "promotion." Such auditioning can take the form, in the current administration, of speeches at the Federalist Society gatherings or, more to the point, writing opinions that fit the appointing president's preferences. Can anyone seriously doubt that John Roberts would not have been appointed to the US Supreme Court had he written a vigorous dissent in the Hamdan case attacking the overreaching by the Executive? One need not attack Judge Roberts' integrity. I have no doubt that, like John Yoo, he is sincerely and deeply comomitted to executive power and that raw opportunism explains little or nothing about his vote. But that indeed is the central point: "partisanship" in the sense that Jack and I are using the term is something that is deeply ingrained and genuinely believed. So identifying the appointing president is a proxy for identifying the likely (though not certain) ideological commitments that might well (though not certainly) explain why the judge was appointed in the first place.

As a matter of fact, I doubt that Jimmy Carter cared all that much about ideological agendas; he was more concerned to "diversify" the federal judiciary, though that necessarily meant bringing to the bench judges who had had a different set of experiences than the white males who tended to dominate the judiciary up to that point. It was surely relevant to Judge Taylor's selection that she is an African-American woman, and I assume that those charged with judicial appointments in the Carter Admninnistration believed that she would bring a different perspective to the bench. One can also wonder, incidentally, how much Clinton had a worked-out notion of what he really intended to do when making judicial appointments. From my perspective, this is a criticism of Clinton, just another way in which he let down some of his own "base." In any event, there is a strong scholarly literature on the deliberate attempt by the Reagan Administration to seize control of the judiciary, and there is every reason to believe that the current Bush Administration is basically using their playbook.

Mr. Denniston also writes: "In this [realist] perception, there is no reason ever to suspect a judge of being good at the craft of judging; however many years may have passed since the judge's pre-bench career, and however distinguished that judicial career may have been, the reader is invited to look to a solitary determinant of judicial behavior -- the irresistible urge to see that my party's agenda (or my president's) is achieved judicially." This invites a debate about what exactly constitutes "the craft of judging." The most caustic attack on such a notion of which I am aware is by Judge Richard Posner, first in a chapter in his book some years ago, Overcoming Law [a remarkable title for a book by a sitting judge, of course], and then, more recently, in his "foreword" to the November 2005 issue of the Harvard Law Review. He argues, I believe persuasively, that "craft" is least likely to explain divided decisions of the Supreme Court, which almost by defintion gets the most complicated and controversial decisions. It makes little sense to say that Chief Justice Roberts is a "better lawyer" than John Paul Stevens or vice versa. They are both fine craftsmen who have strikingly different constitutional visions. And it is the emphasis on a judge's own constitutional vision--linked, more often than ever, to the political party to which he or she owes appointment--that constitutes the realist insight. Moreover, there is ample scholarly evidence that the party background of appellate judges helps to explain the actual opinions in cases. Even though most appellate decisions are in fact unanimous, decisions written by "split panels" (i.e., 2 Republicans and a Democrat or vice versa) will be less "extreme" than decisions emanating from panels of three members of a given political party.

"This perception," continues Mr. Denniston, "has contributed to the poisoning of the judicial nomination and confirmation process. and nurtured the lunacy among senators of talking about "Republican judges" and "Democratic judges." I am not sure, though, that the judicial nomination is more "poisoned" today than in the past, given the rejection rates of past nominees for the Supreme Court. What is certainly different is the extension of such battles to the appellate and, occasionally, even district judge arena, but this reflects, as noted above, a thoroughly rational perception that the inhabitants of such offices are far more important than they were formerly thought to be. I have no hesitation in agreeing that there is much "lunacy among senators," but, overall, I think it makes more sense to refer, say, to "Republican and Democratic judges" than to "restrained" versus "activist" judges. As Jeff Rosen and many others have noted, there is not a single member of the current Court who can legitimately be described as a devotee of Frankfurterian judicial restraint. The Republicans are simply committed to a different form of activism than are the two Democrats and two nominal Republicans.

Mr. Denniston also writes that

"I might suggest that too much of the commentary about Bush v. Gore over the years has focused upon the majority being a group of "Republican Justices" -- as if that were enough of an explanation. That is, simply put, a canard. Had any of those who loosely make such a claim been intimate with the proceedings in Bush v. Gore, closely understood the internal perception (at the Court) of a genuine constitutional crisis (whether or not that was exaggerated), realized the enormous difficulty in analyzing legal and constitutional issues in the midst of a media circus (with the courthouse ringed by TV satellite trucks and klieg lights as if the Court were hosting a political convention or a military skirmish, and knew the Justices well enough to perceive the difference between sincerity and chicanery, the outcome is explainable by far more respectable reasons than a shameless wish for a George W. Bush Presidency. It is one thing, perhaps, for a serious scholar to use partisan identification in analyzing the outcome in Bush v. Gore, perhaps as part of a broader inquiry into judicial motivation; it is quite another thing for a newspaper, magazine or broadcast outlet (or a blogger) to tell a lay audience that has only a few minutes to digest a news item that a court decision in a complex case with much, legally and constitutionally, at stake that the outcome is best explained by partisan affiliation or affection."

Here I am afraid I have to disagree, though I do agree that any full explanation of Bush v. Gore has to take into account such factors as the Court's own institutional interests and the like. This explains, I believe, why Scalia, Rehnquist, and Thomas signed an opinion that they could not possibly have agreed with, based on an aggressive reading of the Equal Protection Clause, in order to avoid the embarrassing spectacle of a 5-judge majority comprised of two different opinions the argumetns of which were soundly rejected by a majority of the justices. I also suspect that it's true that at least some justices genuinely believed that we were faced with a "constitutional crisis." The best defense by far of Bush v. Gore is, I believe, by the aforementioned Judge Posner, who by and large expresses utter contempt for the quality of legal reasoning even as he defends the Court's staving off of an alleged political crisis. But one still has to explain why the perception of political crisis was limited to five conservative Republicans who undoubtedly voted for George W. Bush and not shared by the other four justices. Similarly, as I suggested in my original post, I believe that an explanation for Justice Kennedy's opinion in the Perry reappointment case is his psychological identification with the Republicans who had been victimized by the Democrats in the 1990 reapportionment. The votes of other justices in the majority, who simply and, I think, genuinely believe that redistricting should be nonjusticiable, are less explained by any such identification.

Mr. Denniston concludes by writing that "I did not insult the intelligence of my readers by implying to them that this decision emerged because this is what Jimmy Carter, the Democratic party, or the civil rights movement would have wanted this judge to do." I think that any such argument would indeed be an insult to the intelligence, but I think the "rabbit in the hat" is the term "would have wanted this judge to do." But, as I hope I have made (relatively) clear, I do not think the "realist" analysis requires any reference to such conscious motivations. Partisan entrenchment requires a far deeper commitment to principle, including what counts as proper interpretation of the Constitution. I suspect that few people who supported Judge Taylor's original appointment were disappointed by her sensitivity to civil liberties and, concomitantly, her relative lack of sympathy for unfettered executive power.
Posted 2:19 PM by Sandy Levinson [link]