Balkinization: "The Politics of the Federal Bench"

Comments:

I want to believe you, but it's hard when you remember Bush v. Gore.

# posted by

wcw : 12:59 PM

wcw,

Bush v. Gore--undoubtedly political in nature--was a Supreme Court decision. SCOTUS is a unique court, with greater political influences on decisions. My post is about lower federal courts. It is important to keep these levels distinct.

The tendency to extrapolate observations about politics on the Supreme Court to lower courts has contributed to an exaggerated perception of the role that politics plays in judging generally.

Brian

# posted by

Brian Tamanaha : 1:23 PM

Brian:

You are pretty much alone on the left in your view that judges should be neutral applicants of the law.

At a 2007 Planned Parenthood conference, Obama made his position on the judiciary very clear:

'We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled or old. And that's the criteria by which I'm going to be selecting my judges.'

Not one word about following the law.

There are also Mr. Obama's radio interviews decrying the failure of the not so radical Warren Court to find constitutional rights to redistribution.

The Dem media is so excited about the prospect of Obama judicial appointee that we have the Washington Post breathlessly anticipating Dem takeovers of select federal circuits as if these circuits were the Congress set to legislate. You would not see Fox News or the WSJ doing anything of the kind.

I doubt the GOP will, nor do I think they should, filibuster Obama nominees. However, the GOP should make clear to their base the cost of staying home last election by placing the spotlight on any radical appointments which conform with Mr. Obama's idea of empathy.

Where they should change past practice is by uniformly voting against any nominee who practices "living constitutionalism" or similar theories on the ground that judges who do not follow the law are not qualified to sit on the bench.

# posted by

Bart DePalma : 1:28 PM

So on politically charged cases, how often do the courts agree?

# posted by

TN : 1:43 PM

This comment has been removed by the author.

# posted by

Jkat : 2:00 PM

this remains .. imo .. a singularly interesting law blog .. wherein mostly level-headed professors of law offer up scholarly opinions only to be nitpicked legal midgets and partisan political hacks ..

i commend you professor for offering yourself up to entertain such mendacious tomfoolery..

# posted by

Jkat : 2:02 PM

Mr. DePalma,

There are also Mr. Obama's radio interviews decrying the failure of the not so radical Warren Court to find constitutional rights to redistribution.

I've corrected you on this lie before.

Obama commented that the Warren Court "wasn't that radical" because it "didn't break free from the essential constraints that were placed by the Founding Fathers in the Constitution, at least as it has been interpreted."

These comments imply that it is permissible to interpret away "the essential constraints that were placed by the Founding Fathers in the Constitution" and the not so radical Warren Court should have done so. After all, as Obama commented later, the failure of the civil rights movement to implement major "redistributive change" through the courts was a "tragedy".

They implied no such thing. Stop reading drudge. Your woeful ignorance shows through too easily.

The actual context:

“If you look at the victories and failures of the civil rights movement, and its litigation strategy in the court, I think where it succeeded was to vest formal rights in previously dispossessed peoples, so that I would now have the right to vote, I would now be able to sit at a lunch counter and order and as long as I could pay for it I’d be okay."

"But," Obama said, "The Supreme Court never ventured into the issues of redistribution of wealth and sort of more basic issues of political and economic justice in this society. And to that extent as radical as I think people tried to characterize the Warren Court, it wasn't that radical. It didn't break free from the essential constraints that were placed by the founding fathers in the Constitution, as least as it's been interpreted, and Warren Court interpreted in the same way that generally the Constitution is a charter of negative liberties, says what the states can't do to you, says what the federal government can't do to you, but it doesn't say what the federal government or the state government must do on your behalf. And that hasn’t shifted."

Obama said "one of the, I think, the tragedies of the civil rights movement, was because the civil rights movement became so court focused, I think that there was a tendency to lose track of the political and community organizing activities on the ground that are able to put together the actual coalitions of power through which you bring about redistributive change, and in some ways we still stuffer from that."

The tragedy was the civil rights movement became too court focused, instead of focusing on organization and legislation. Most “i-don’t-like-activist-judges” conservatives should appreciate his emphasis on change through the elected branches.

Further, your “bolded” text is carefully taken out of context to prevent an honest reading of the passage. Obama argued the Warren Court interpreted the Constitution as all previous courts did (from a personal liberties viewpoint) – as a charter of negative liberties.

From Tuesday, October 28, 2008
More Political Football at the Expense of Judges: Obama Appointments A Threat to the Rule of Law
http://balkin.blogspot.com/2008/10/more-political-football-at-expense-of.html

While we have learned to deal with your opinions, asserting factual claims about people (repeatedly) that are demonstrably false is a bridge too far.

You are pretty much alone on the left in your view that judges should be neutral applicants of the law.

At a 2007 Planned Parenthood conference, Obama made his position on the judiciary very clear:

'We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled or old. And that's the criteria by which I'm going to be selecting my judges.'

Not one word about following the law.

How about, you know, let's look at the whole context?? maybe that'd help see what Obama thinks?

I said, well look, that’s absolutely true and in most Supreme Court decis--, in the overwhelming number of Supreme Court decisions, that’s enough. Good intellect, you read the statute, you look at the case law and most of the time, the law’s pretty clear. Ninety-five percent of the time. Justice Ginsberg, Justice Thomas, Justice Scalia they’re all gonna agree on the outcome.

But it’s those five percent of the cases that really count. And in those five percent of the cases, what you’ve got to look at is—what is in the justice’s heart. What’s their broader vision of what America should be. Justice Roberts said he saw himself just as an umpire but the issues that come before the Court are not sport, they’re life and death. And we need somebody who’s got the heart—the empathy—to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor or African-American or gay or disabled or old—and that’s the criteria by which I’ll be selecting my judges. Alright?

Hey - that seems a lot more rule of law-y and principled-y. Maybe we shouldn't try to cherry pick stuff so we can win dishonest points as long as no one checks our work, eh?

# posted by

nerpzillicus : 2:58 PM

Brian Tamanaha: I don't know what your judicial experience is, but as a former appellate law clerk, I KNOW that a large number of cases are "politicized." I could give many examples of this from the short time I was a personal witness to much of it.

Even in the district courts political viewpoints seriously influence a very significant number of cases, especially in the areas of criminal law, but also in the areas of share-holder derivative suits and other business cases, environmental cases, employment law cases, etc.

The judiciary is profoundly politicized, and many appellate courts are now ELECTED. The judges raise money and run on "law and order" platforms, etc.

It's a pathetic joke to talk about "just applying the law" when interpreting the laws depends on a judge's judicial outlook and temperament and THAT is very much political.

What IS the law, often depends on whether the judge is liberal or conservative. There's a profound difference in cases as varied as civil rights, equal rights, voting rights, legislative powers and constraints, environmental cases, and many business as well as the overwhelming majority of criminal cases.

Think that a judge's viewpoints about search and seizure law don't influence his judgment, how he applies "the law?"

Cases are rarely clear-cut and precisely "on point" and it's in the gray areas that judicial "temperament" -- which is nothing more than the life experiences and outlook of the particular judge -- comes into play.

To pretend otherwise or to rail against "politization" of the judiciary is flat ABSURD!

Pull your head out of the sand and rejoin the real world!

# posted by

Cugel : 3:15 PM

@Cugel,

I hope you put more effort into researching facts for your clients than you did on your terribly rude remarks to Professor Tamanaha. Your bad manners are surpassed only by your laziness. Poke around the blog, see the professor's recent abstract about empirical studies of the judiciary, maybe even read his book, "Law as a Means to an End". Such efforts might allow you to write credibly in the future.

# posted by

Robert Link : 3:34 PM

@nerpizillus: "I've corrected [Bart DePalma] on this lie before."

Welcome to the club, nerp. One of the real failings of blogs is that they make it fairly easy avoid repercussions of dishonesty that one would face in a more cohesive community. Several of us have experienced exactly this with Mr. DePalma, correcting him on one thread only to have him repeat his bad behavior on the next. It's not just a failing of his moral and intellectual honesty, it's a failing of the medium (and, arguably, our host/moderators as community builders, but community building might not be on any of our host's agendas).

# posted by

Robert Link : 4:35 PM

Robert - I can only speak from reading reported cases and, of course, cases are often framed by the legislation which is being applied to the facts.

But I must say that case reports at appellate level in the USA (both state and federal) often appear to be written in polemical, not to say scurrilous, terms suggesting that there is far more polarisation between left and right, or between conservative and liberal, or between strict and purposive constructionists, than there is in the UK.

In the Federal judiciary this is undoubtedly the effect of many years and more of highly political appointments - i.e., of the While House only nominating and the Senate only confirming those Judges who are in the good books of the Federalist Society.

I don't think this is an issue of politics so much as an issue of mindset. After all if one appoints a bench for criminal cases where the ratio is 3:1 ex full-time prosecutors -v- ex defence lawyers; or a bench hearing industrial injuries and like cases where the bench is composed uniquely of former corporate attorneys, then Joe Public is unlikely to feel he is getting a fair trial - even if has been as fair as the law allows.

So I don't think it was quite so fair of you to snap at Cugel and pretend everything in the garden is rosy because it plainly isn't and on what I have read there is a looming crisis of legitimacy which suggests a pressing need for some quite radical reform.

# posted by

Mourad : 5:56 PM

@Mourad,

Cugel opened with an attack on the professor's bona fides rather than substance, then continued either in ignorance of or denial of the empirical evidence to which the professor has repeatedly pointed, offering us his personal, anecdotal wisdom instead of the reasoned argumentation offered by the professor. So, yeah, I snapped at him.

Things are not all rosy, nor do I think my response to Cugel really implies such. Clearly the higher the bench, the more politics matter. I haven't yet ruled out the value of reform such as you suggested on a recent thread. But even if you don't win me over to your position, you will have earned my respect and my ear and my consideration through a history of thoughtful posts. That is not yet true of Cugel, but one can hope.

# posted by

Robert Link : 6:26 PM

Jonathan Alter has a post up about the "partisan warfare" on the 6th Circuit here.

# posted by

Mark Field : 7:26 PM

Jonathan Adler, of course; I don't expect to find Jonathan Alter posting at Volokh any time soon.

Sheesh.

# posted by

Mark Field : 7:29 PM

"There is a clear suggestion in all this that judges decide cases based upon their political views."

It is hyperbole but "politics matters at the margins" also is questionable. You note the SC is different. So are "conservative" circuits like the 4th from others.

Who did Reagan and Bush (I/II) pick to fill the lower courts? Are we to assume only "at the margins" partisan views mattered?

As to the "unique" reach of the SC, with a small docket, lower courts will be more important. On certain issues, they generally have the last word in practice.

This includes district court judges where there is a "majority" of one. The 90% number also is misleading to the degree controversial subjects are more likely to be divided.

After all, most SC rulings aren't 5-4 either. Does this mean there is no "left" / "right" split there?

Cugel noted some judges are elected; this obviously doesn't apply to federal judges. But, they are picked by means of a political system. Thus, yes, politics is involved. We had "Whig" and "Federalist" judges too btw.

This isn't new.

# posted by

Joe : 7:41 PM

Thanks, everyone, for the thoughtful comments.

I have only a brief response for Cugel. I clerked for a a federal judge who sat both on trial an appellate cases: Walter E. Hoffman of the Eastern District of Virginia.

His commitment to uphold the law--even when inconsistent with his personal preferences--was heroic.

Judge Hoffman suffered a backlash from friends an neighbors for remaining true to the spirit of Brown v. Board of Ed. When I asked him why he did it, he said, simply, that the Supreme Court ruled that way, and he had taken an oath to uphold the law.

This is not to say every judge does it, or that judges who want to do it do so every time.

But clearly a judge can commit to following the law.

The many cynics who deny this ought to take a look at other countries that do not have judges who take this oath seriously. Then you will see the foolishness of casual skepticism.

Brian

# posted by

Brian Tamanaha : 9:13 PM

I don't think BT really answered Cugel's points via his single personal experience.

This includes the possibility that the courts could be more politicized these days and the perils of focusing on one case. Or what "could" be done.

Most importantly, Cugel argued that 'following the law' includes law that is open enough to be influenced by various factors, including ideological leanings.

This is not just people ignoring their oath. Stevens and Scalia, I'm sure, think they are upholding their oath. Ditto any number of lib/conservative lower court duos.

# posted by

Joe : 10:59 PM

Dear Mr. Tamaha:

Time to take off the rose-colored glasses, and doff your self-inflicted Polyanna role.

Have you paid any attention over the last eight years to Bush's appointments to the federal bench, and especially to the circuit courts? In every instance he has tried to put in a youngish Federalist Society member, and has usually succeeded, except for the few nominees so far "out there" that even the weak-kneed Dems opposed them.

Look at the Fourth Circuit in particular, and the Administration's great faith in that court. Bush's people were careful to lock up detainees in federal prisons in that Circuit, because they knew that the Fourth would come through for them -- and it invariably did. And even where a 3-judge panel may have ruled contrary to the administration, or to a conservative position, the court has then overruled the circuit en banc, on a frequent basis.

So change in the Fourth Circuit, at least on some major issues, will be critical for constitutional liberties.

Twenty-eight years ago, pre-Reagan and Bush II, your position would have been correct. But those two presidents vetted their nominees extremely carefully, to avoid any surprises. They went for young conservative judges, people who would be there for a long time.

So now we have large numbers of doctrinaire Federalist Society types on the federal bench.

Further, even where there are the unanimous decisions you mention, that often reflects no more than a 3-judge panel compelled to follow circuit stare decisis, which itself was likely established by a conservative panel.

So please, Professor, spend a little time in the real world, out of the sociological theories of the ivory towers.

Ross Taylor

# posted by

Ross Taylor : 1:14 PM

Bart writes:
You are pretty much alone on the left in your view that judges should be neutral applicants of the law.

Bart whey Brian wrote "I wish both sides would stay home", well, your purely political tripe fits in there perfectly. Is your only contribution political? I'll bet you can't submit a post that isn't political.

# posted by

John : 2:08 PM

It's a pathetic joke to talk about "just applying the law" when interpreting the laws depends on a judge's judicial outlook and temperament and THAT is very much political.

What IS the law, often depends on whether the judge is liberal or conservative. There's a profound difference in cases as varied as civil rights, equal rights, voting rights, legislative powers and constraints, environmental cases, and many business as well as the overwhelming majority of criminal cases.

While this is undoubtedly true, it is no way denies the possibility (and fact, in my view) that the majority of judges in the majority of cases seek to apply the law rather than generate outcomes.

If that is the best that can be done, that is all the judicial oath requires. But it is important that judges (and the rest of us) do not subscribe to the mistaken belief that because we do not all reach the same conclusion on what the law is that we cannot impartially apply the law.

And this is an important point that you do not have to be naive and "Pollyanna-ish" to appreciate.

# posted by

curtstest : 6:13 PM

As someone who used to read a lot of federal court opinions on class actions in my job (these days I mostly read Texas court opinions on everything), I think there is some merit in what you say. Many of the courts do appear to lean over backwards to apply the law as they see it, and I suspect in many cases the bias is more philosophical than political.

However, I could almost always predict -- on political grounds -- what the Fifth and Fourth Circuits would do with a case. Both are dominated by very conservative judges appointed by Republicans. It's pretty easy to guess what the Fifth Circuit has said on a subject by simply knowing the name of the judge who wrote the ruling and the issue before the court.

And then there is the irony that the 9th Circuit is often described as a "maverick" court, when in fact it is simply the only court of appeals in the country where a majority of both the active judges and the senior judges were appointed by Democrats. I think this speaks to the shift to the right in the courts as a whole. I don't find the 9th Circuit decisions particularly political, but right wingers certainly characterize them that way, and have sold that pov.

In most of the other circuits, a majority of all judges were appointed by Republicans, though in a few there are a majority of Dem-appointed senior judges along with a slight edge of Rep-appointed active judges (or vice versa). And in some courts the balance of judges is very close. (I looked all this up one afternoon when I was goofing off at work, but unfortunately I didn't keep a copy of my tally.)

# posted by

Nancy Jane Moore : 7:55 PM