Balkinization  

Tuesday, May 06, 2008

Judge Posner Skewers Textualism-Originalism (Thomas, Scalia), And Reveals the Increasing Politicization of Judging by Conservatives

Brian Tamanaha

The following passage is from Judge Posner’s fascinating—that is, informative, insightful, provocative, sometimes strange, exercise in unadorned truth telling about judging (by his own lights)—How Judges Think:

This politically conservative response (“originalism” or “textualism-originalism”)—which under different conditions could be a liberal response but is more congenial to conservatives because of its evocation of an era more culturally conservative than today—illustrates a more general tendency of judges to reach backward for the grounds of their decision. By doing so they can if challenged claim to be employing a different methodology that involves deriving conclusions from premises by logical operations as distinct from basing action on a comparison of the social or political consequences of different possible outcomes. But the backward orientation actually enlarges a judge’s legislative scope, and not only by concealing that he is legislating. A judge or Justice who is out of step with current precedents reaches back to some earlier body of case law (or constitutional text) that he can describe as the bedrock, the authentic Ur text that should guide decision. And the older the bedrock, the greater the scope for manipulation of meaning in the name of historical reconstruction or intellectual archeology….

The originalist’s pretense that [one can derive authoritative interpretations applicable to present disputes in this manner] makes originalism an example of bad faith in Sartre’s sense—bad faith as a denial of freedom to choose, and so the shirking of personal responsibility...[Justice Breyer also gets some criticism here].

Sartrean bad faith need not be conscious….He considers his decisions legitimate, concludes they must therefore be legalist, and constructs a legalist rationale that convinces him that his decision was not the product of his personal ideology.


Through a statistical comparison, Posner shows that conservative Justices on the current court more consistently vote in accordance with their political values than do liberal Justices (some of the numbers can be found here); and that the current generation of Republican appointed federal court of appeals judges shows a significantly higher proportion of conservative votes than Republican appointed judges over the past eighty years (Republican appointed federal appellate judges from 1925-2002 vote conservative 55.8% of the time; Republican appointed currently sitting judges vote conservative 66.9%); whereas there is no significant change in the conservative voting pattern (49.6%; 49.7%) of Democratic appointed judges between these two periods, and a reduction in their liberal votes (43.5%; 39.5%).

Put more simply: the Supreme Court Justices and Appellate Judges appointed by Presidents Reagan, Bush and Bush vote consistent with their political views at a higher rate than previous Republican appointees, and at a higher rate than Democratic appointees. That’s what the numbers show.

Posner explains this increased politicization in judicial votes as a consequence of the emphasis Republican Presidents since Reagan have placed on ideology (replacing mainly patronage considerations) in selecting judges for appointment. To explain the less robust political voting of Democratic appointees, he suggests (a bit strangely, although perhaps correctly) that Democrats don’t have their act together compared to Republicans in vetting judges for ideology, and he also suggests that perhaps liberal judges are less committed to fighting for their liberal values.

A simpler explanation might be that Democratic judicial appointees are more committed to respecting and abiding by the law (to restraining the influence of their political views).

Comments:

Lovely - the Sartre analogy is spot-on.

I'm ambivalent about Posner, but perhaps this book is worth a read.
 

On a nearby thread I noted in passing an article by Sunstein, but said, inaccurately, it was on JSTOR.

It's "Ideological Voting on Federal Courts of Appeal" and is on SSRN (but of course) with co-authors Schkade and Ellman.

A relevant passage from the abstract:

"Taken as a whole, the evidence suggests that judges frequently issue collegial concurrences, that is, concurrences produced by the unanimous views of the other judges on the panel, and that judges are subject to group polarization, by which groups of like-minded people go to extremes."
 

Professor Tamanaha:

Put more simply: the Supreme Court Justices and Appellate Judges appointed by Presidents Reagan, Bush and Bush vote consistent with their political views at a higher rate than previous Republican appointees, and at a higher rate than Democratic appointees. That’s what the numbers show.

Posner explains this increased politicization in judicial votes as a consequence of the emphasis Republican Presidents since Reagan have placed on ideology (replacing mainly patronage considerations) in selecting judges for appointment. To explain the less robust political voting of Democratic appointees, he suggests (a bit strangely, although perhaps correctly) that Democrats don’t have their act together compared to Republicans in vetting judges for ideology, and he also suggests that perhaps liberal judges are less committed to fighting for their liberal values.

A simpler explanation might be that Democratic judicial appointees are more committed to respecting and abiding by the law (to restraining the influence of their political views).


If Posner is positing that the politically conservative approach is original meaning and/or original intent of the law, then the politically liberal approach must be living constitutionalism - court rewriting of the law to adhere to "modern mores."

In this case, your observation that liberals are "more committed to respecting and abiding by the law" because they decline to consistently utilize liberal living constitutionalism implies that conservative originalism is more respectful and abiding by the law than liberal living constitutionalism. This textualist can hardly argue with that self evident proposition.

However, if originalism is more faithful to the law and the conservatives are more consistently faithful to originalism than are the liberals, then it would be a mistake to conclude that liberals are "more committed to respecting and abiding by the law."

Rather, I would suggest that the data indicates that that the text in some laws which are simply so clear that even liberals will decline to rewrite them even if that ruling results in a "conservative" result. However, because conservatives start with the text in their interpretation, they end up being more consistent in their outcomes.
 

I'm not sure that the respecting-the-law explanation really is simpler: is there any reason to think that the left would respect law they disagree with more than the right? I think Posner's explanation probably is the best one, and it's the most consistent: if we explain right behavior by the fact of how right administrations nominate judges, then it seems quite plausible that left judicial behavior could be explained the same way.

There's also the fact that the only recent left presidency was quite centrist, in particular regarding things like crime (a pretty major issue in judicial appointments, I'd think).
 

"[Tamanaha] observ[es] that liberal[] [justices] are 'more committed to respecting and abiding by the law' because they decline to consistently utilize liberal living constitutionalism...."

No. He observed the material you quoted, and then you put a spurious causal explanation in his mouth.
 

"A simpler explanation might be that Democratic judicial appointees are more committed to respecting and abiding by the law (to restraining the influence of their political views)."

What Sunstein et. al. found was that there was a distinctive difference in the 3-judge panels:

3 Republican president appointees on a panel voted much more ideologically than the panels consisting of a combination of 2 RPA's and 1 DPA. Whereas 3 Democrat president appointees did not vote to the same degree differently than when the panel had 2 DPA's and 1 RPA.

The presence of a dissenting (Sunstein calls them "whistleblower" judge) moderated the Republican panels as it did the Democrat panels, but when there was no dissenter the all-Republican panels deviated to more extreme ideological voting than did the all-Democrat panels.

Make of that what you will.

I tend to think of it as a "bad boys" syndrome. Immoderate behavior is emboldened by numbers and restrained by whistleblowing.
 

An extremely intersting post. But I tend to think that the explanation for the lesser degree of ideological voting by Democratic appointees is that we're basically measuring judges appointed by Bill Clinton, who exhibited remarkably little interest in capturing the judiciary for any goals he might have had, save for making sure (possibly to the detriment of the Democratic Party) that some version of Roe would stay on the books.

It's hard to make any predictions at all about Hillary these days, given that we don't know what persona she will be presenting on any given day. The populist anti-elitist we're currently seeing might well be opposed to judicial review at all, but one never knows a thing where the Clintons are concerned (beyond the almost literally incredible relentlessness in trying to maintain their top-dog status). I assume that Obama in fact has a far better conception of what he'd like to do in making appointments, but, of course, the morons who are in charge of "debates" and the news shows think such questions beneath them when it is so more interesting to take about flag lapel pins. But I digress....
 

I like this quote from Sunstein's article:

"More particularly, a Democratic appointee, on a courts of appeal panel, turns out to be extremely important in ensuring that such a panel does what the law asks it to do."

Well, we've known that for 50 years at least.
 

Bart,

I have a bit of trouble following your reasoning, so I don't know how to respond.

On the subject of "Originalism", my view is much like Posner's--it's a capacious theory of interpretation that allows judges much leeway for invention.

Setting that aside, you should look at the statistics on federal appellate judges. Two contrasts are telling: 1) that between Republican appointees and Democratic appointees; 2) that between current Republican appointees and Republican appointees over the past 80 years.

All of your arguments "explain away" the differences between Republican and Democratic appointess--flipping the higher political votes of the former into a greater degree of fealty to the law (nice work!). But let's set that aside.

Instead explain why current Republican appointees decide cases at a significantly higher conservative-politics rate compared to Republican appointees over the last 80 years. [and don't say the meaning of "conservative" has changed over time--Posner corrected for that].

Here you have two sets of Republican appointees, with the contemporary group apparently rendering decisions in a far more politically-infused manner. You can hardly say both are following the law equally, right?

Sandy,

You are right that the profile of Clinton's appointees was "moderate" rather than liberal. That probably explains the drop in liberal views of the current generation of judges.

As for the judicial appointees of President Hillary Clinton, my hope is that we will not find out.

Brian
 

The coming Obama appointments will be a nice leavening....
 

In addition to what Brian says, I don't think Bart deals with Posner's main point, which is that to the extent originalism is a constraint at all, it is a phony one, asserted to excuse unjust results (and only some of the time-- conservative originalists ignore clear original meanings all the time when they don't like the outcomes).

So, Scalia can furrow his brow and say "I'm so sorry, but I can't rule that the constitution forbids the execution of the innocent" or some equally heinous and evil decision, claiming that he is totally constrained by originalism when in fact he diverts from it all the time and he really just doesn't have any sympathy for death row inmates claiming innocence that justifies (in his mind) a departure from originalism.

It seems to me Posner's got the originalists dead to rights on that.
 

Brian,

I asked the same question to a conservative commenter on another website with respect to how one explains the difference between current Republican appointees and the preceding 75 years of Republican appointees. The argument was that Eisenhower was a liberal, Nixon screwed things up, and it wasn't until Reagan that things got "back on track."

So, they've got that going for them. Which is nice.
 

"Eisenhower was a liberal, Nixon screwed things up . . . ."

Yep: Ike was a liberal: he knew Nixon was a screw-up even before Nixon made it a public fact.
adgslpx
 

What does Posner mean by "originalism"? There's an awful lot in the brackets in the key sentence here: "The originalist’s pretense that [one can derive authoritative interpretations applicable to present disputes in this manner] makes originalism an example of bad faith in Sartre’s sense..." What is this pretense, exactly, and why think that originalism has it inherently? I can't tell what "this manner" means here. I'm inclined to think that any fault Posner points out here might well be in the way that particular originalists have advertised their position, not the view itself. But I suppose I can read the book for details.
 

Posner gave a great example of "how judges think" in his article on the Dubya v. Gore case.

Pure ... ehhh, ummmm ... 'pragmatism'.

Forget about any principles, do what you need to do for the god of the country. That was his basic analysis. He was claiming that the decision, unfounded on law as it was, prevented some alleged political "constitutional crisis"....

Cheers,
 

Instead explain why current Republican appointees decide cases at a significantly higher conservative-politics rate compared to Republican appointees over the last 80 years... Here you have two sets of Republican appointees, with the contemporary group apparently rendering decisions in a far more politically-infused manner.

I haven't read these studies, but I'm sure you've heard of the Four Horsemen, Lochner, Adkins v. Children's Hospital, Schechter... yet you really think Republican appointees then rendered decisions in a less politically infused manner than now? I think some of Eisenhower and Nixon's appointees were simply products of poor vetting. We know that Eisenhower always regretted putting Warren and Brennan on the Court.
 

I think the insight that Republican Presidents since Reagan actively sought to place more ideologically rigid justices on the Court--and that this increased the potential for opinions based on conservative ideology--is correct.

But don't discount the impact of the median Senator. The ideology of the median Senator influences both the choice of nominees and the chances for approval. This means that judges appointed by liberal Presidents facing a more conservative Senate will form ideologically liberal opinions less often--since they will be less ideologicall liberal. The reverse is also true.
 

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