Monday, November 16, 2009

The Liberal Dilemma on Judicial Appointments

Brian Tamanaha

According to a recent New York Times article, liberal organizations that monitor judicial appointments are unhappy that the Obama Administration is going slow in its judicial nominations. Their real concern, however, is not the leisurely pace but the moderate profile of his nominees: “Liberals…complain that the Obama team’s selections have been too moderate to counterbalance the strongly conservative appointees of Republican presidents, echoing an accusation they made during the Clinton administration.”

Liberals critics believe that Clinton was foolish to downplay ideology in favor of diversity in his judicial appointments, and they fear that Obama will make the same mistake. “Of Mr. Obama’s 12 appellate nominees, six are women, four are black, one is Asian and one is Hispanic. By contrast, about two-thirds of Mr. Bush’s nominees were white men.” Obama’s diverse nominees do not all conform to standard liberal ideological profiles.

It is foolish to take this approach, liberal critics assert, because Republican Administrations have for three decades rigorously screened all federal judicial nominees for extremely conservative values, and have pointedly sought young nominees, many in their thirties and forties, to insure a lasting conservative influence on the bench. (Prior to this period, only Supreme Court nominees were screened for political views; lower court appointees were mostly matters of patronage.) Democratic presidents who fail to follow the same strategy are, in the eyes of liberal critics, unilaterally disarming against their political adversaries, thereby insuring conservative domination of the federal bench.

The argument makes sense—unless one is concerned about the growing politicization of courts. Screening nominees for liberal ideology will increase politicization, not reduce it, exacerbating the problem rather than solving it.

Liberals who believe that judges should strive to render decisions based upon the law in a non-political fashion (even if this cannot be perfectly achieved) are faced with a gut-wrenching dilemma. Consistent with this principle, they should always oppose rigid ideological screening of lower court nominees. (This does not mean a nominee’s political views are irrelevant, but that conformity to liberal ideology is not the overriding consideration.) But liberals know that conservatives stand ready to exploit this naïve idealism.

So what is a liberal to do?

Unilateral disarmament is the right choice (as I have argued here). There is no other way. We must trust principled conservatives in the next Republican presidency to stand up and oppose rigid ideological screening on their end. Then, perhaps, this destructive pattern of politicization can be broken.

This act of good faith, regrettably, will likely fail unless the Republican Party undergoes a radical internal change. Nonetheless, if it is indeed eschewing vigorous ideological screening, the Obama Administration is doing the right thing.


The speed vis-a-vis the last administration should take into consideration all the other stuff going on including a Supreme Court appointment, particularly as to compared to Jan-Sept. 10, 2001.

As to ideological picks, bottom line, Obama is a lot less "leftist" or whatever word you use than some wish or fantasize him to be. As with involvement in Afghanistan, his actions and words before the election suggested as much.

This along with a message of trying w/i limits to go beyond politics as usual will apply to his judicial picks. He has shown signs with his view judicial picks already, local Republican senators giving a chance to become involved in lower court picks, e.g.

And, since ideology alone was not the test for Clinton or even Carter as far as I know (he was concerned about diversity, not just ideological purity), the path suggested here is also the only realistic path overall.

It is also the right thing to do.

I'll be happy as long as he doesn't appoint any more neo-fascists, but don't understand why they haven't nominated people to every open seat.

Prof. Tamanaha, have you ever read The Evolution of Cooperation by Robert Axelrod?


I haven't read the book but I am generally familiar with his argument. If I recall correctly, the idea is to combine intial trust with immediate punishment for defection.

The problem with this strategy, at least in this situation, is that Republicans have already defected when Bush 43 went back to ideological screening after Clinton abstained.

By that reasoning, the right approach now is punishment, which I suggested would merely make matters worse.


You are correct that Carter also did not focus on ideology; indeed he tried to reform the selection system in a way that focused on merit.


We must trust principled conservatives in the next Republican presidency to stand up and oppose rigid ideological screening on their end.

And we must trust Hitler not to invade Poland. Principled Republicans? You're living in a fantasy world.


I don't follow your argument here. The reason for unilateral disarmament is that it will lead to depoliticization. But you admit that this didn't happen with Clinton and is extremely unlikely to happen with Obama. The result is and will be the continued shift of the judiciary toward the right. Given all of that, what exactly is the argument for not choosing more liberal judges, or perhaps, for not choosing younger moderates (since Obama's judges are, on average, significantly older than those chosen by the last three presidents). If Obama is going to appoint minimalists, he might at least prefer for them to have longer tenures on the bench. Would aiming for that be doing the wrong thing?

For what it's worth, I've made similar points on the same subject over at Prawfsblawg, where Paul Horwitz also seems inclined to unilateral disarmament. When the other side hasn't reciprocated, and when there is no good reason to expect reciprocation, it's hard to see the basis of this strategy. In what sense would things be worse if Obama chosen younger moderates or liberals?

"since Obama's judges are, on average, significantly older than those chosen by the last three presidents"

A quick check shows the difference is six years (56 over 50). I'm unsure the real effect of about five years, especially with the tail-end of judicial careers affected by various variables.

Now, some conservative picks (e.g., Thomas) were truly young. A non "rigid" process, however, would be wary of such people out of fear that they were not truly qualified.

I guess it's also relevant that some around here support judicial term limits.


I read your comments on Prawfs. My response is that the Republican politicization of judicial appointments is bad, and Obama engaging in the same tactic not only won't improve the situation, but will guarantee that it will not improve.

You might think that it is wishful thinking to hope for improvement, and indeed it is. The alternative--what you propose--is giving up all hope and deepening the entrenchment on both sides.

Important legal ideals are at stake.

Your suggestion that extremism on one side can somehow counter-balance extremism on the other side, resulting in a happy minimalism, strikes me as unlikely.

What is more likely is that panels dominated by one side or the other (2-1) will aggressively vote to advance the interests they prefer. This does not result in a middle ground compromise, unless you average the outcomes in some abstract way.

From the standpoint of litigants, it will not feel like a happy medium, but like a deeply unfair system in which the results of a given case depend upon the luck of the draw that seats the balance of judges on a panel.

I understand your concern, and your response. I just don't think we are there at the point of giving up.

There are many principled conservatives who wish to preserve the integrity of the judicial system. Admittedly, they have not exerted much influence on this topic in recent decades. That can change, and they will have a better chance of restraining their less principled conservative colleagues if they can argue that the Obama administration exercised restraint.


The five year difference is an average deviation, and it's a significant one. As I've commented elsewhere: since Reagan, Republicans have appointed 17 circuit judges younger than the youngest Democratic appointee (including 11 in their 30s). Since 1979, Democrats have nominated only 9 circuit judges under the age of 45; Republicans have nominated 42.

Clarence Thomas's nomination at a young age isn't an exception. He's rather an example of a broader strategy which produced the nominations of many of the leading figures in American libertarian and conservative jurisprudence, including: Kozinski, Jones, Easterbrook, Luttig, Starr, Gorsuch, Wilkinson, Alito -- all nominated in their 30s; Colloton, Ginsburg, Jerry Smith, Kavanaugh, Boggs, Kethledge, Sutton, Posner, Pryor, Sentelle -- all nominated under 45; and McConnell, Scalia, Randolph, Chertoff, O'Scannlain, Stephen Williams, Silberman, and John Roberts -- all under 50 when successfully nominated. (Roberts was 36 when first nominated by Bush I.)

The Republicans have long understood that age matters. What's harder to understand is why Democrats haven't.


"Important legal ideals are at stake."

What might those be?

I've watched the US government commit war crimes by policy for eight years now, and I've had to go on watching those crimes under the current administration because of catastrophic mistakes like keeping Gates at DoD, and listening to people who don't want to prosecute US officials who commit federal offenses. It's not so much the politics that bother me, it's the murders and the legal subversion.

Just yesterday I heard the Senate minority leader call a prospective federal criminal trial in one of the most well-respected federal district courts in the US a "political show trial". Meanwhile, the real show trials at Guantanamo Bay lurch along with Sen. McConnell's enthusiastic support. I don't really care about the politics. What I care about are the lies, the murders, and the sheer demented perversion and hypocrisy.

The Republican Party is the most dangerous terrorist organization on the planet.

If I recall correctly, the idea is to combine intial trust with immediate punishment for defection.

Yes, but the next step is crucial: to offer to cooperate after the punishment, despite the previous defection. If that offer is then accepted, both parties can move forward.

The problem with this strategy, at least in this situation, is that Republicans have already defected when Bush 43 went back to ideological screening after Clinton abstained.

True. And if they face no consequence, then they will perceive that their defection was rewarded and will continue to do it.

One of the fascinating things about Axelrod's book is that all these strategies get tried. Ignoring a defection is a failed strategy (failed in the sense that it leads to an environment of anarchy rather than cooperation).*

The alternative--what you propose--is giving up all hope and deepening the entrenchment on both sides.

This is where I disagree. The correct strategy is to punish the Republicans, but ALSO to offer changes in the system which both parties would abide by. For example, here in CA we have a centrist panel which provides the names of judges and everyone (both Senators, even Bush) agreed in advance to accept them. It's worked very well to de-politicize the situation.

There are many principled conservatives who wish to preserve the integrity of the judicial system.

I don't see any of them in the Senate. And by the way, the Senate itself is very problematic, given its highly unrepresentative composition. Any deal has to take this into account.

*And, speaking as a parent, it's not a good way to raise kids either.


I appreciate this argument, but I'm still not convinced. I don't think these are tactics on the part of the Republican party. It's a long-term strategy, implemented with discipline and significant success. Any argument about depoliticization has to take this seriously and explain why the party would abandon a strategy that has worked quite well for three decades.

Here's another worry: the GOP strategy may be so successful that judges who are, in fact, quite moderate are seen as extreme (e.g., the current debate over Judge Hamilton). A decades-long shift in the judiciary has a framing effect, which makes it more difficult for this administration to nominate even moderate liberals. The continued rightward shift of the judiciary would only make this problem worse.

As for litigants, under a mixed system, some 2-1 panels might reach decisions that some litigants believe are unfair. Some of these decisions will be policed en banc. But even if this is right, and if there isn't some ideological moderation through panel diversity, the alternative is an increasingly conservative judiciary. Under that judiciary, many litigants will have equal reason to complain. The panels they draw will be more consistent, but that will be because of greater ideological uniformity. I still don't see why liberals should willingly concede the latter scenario.

You think that appointing younger liberal judges would deepen entrenchment. But not only is one side already entrenched and showing every sign of remaining so -- I realize this is round the circle we go -- there is a further cost for liberals and progressives in not creating a new generation of leaders on the bench. Conservatives have shown that it takes decades of experience on the bench to do this (which is one reason to appoint younger judges). It's not clear that liberals have internalized this lesson.

Out of curiosity, do think that Obama should opt for unilateral disarmament when it comes to Supreme Court nominations? As between two moderates who are 55 and 65 years old, which should he choose? Nominating the older judge might depoliticize the decision. Does that alone make it a better choice? I suppose I'm asking because it's interesting to know whether ideological commitment is doing the work here, or merely duration of judicial influence (with age as a proxy). It may be that both are in play, but age does seem to matter when it comes to (de-)politicization.

Lastly, Mark Field's comment above on tit-for-tat strategies strikes me as correct. The proper response is punish and offer cooperation. It's a difficult question how to make a credible offer, but I'm still not persuaded that appointing older moderates is the best way forward.

"The five year difference is an average deviation, and it's a significant one."

One, we have a small sample size in the case of Obama. Two, I need to know the benefits of those chosen by Obama as a whole vis-a-vis some other one younger.

Three, again, if we are talking real young, that would be a problem as well. I didn't think Thomas was qualified even w/o the other baggage in part because of his youth. I don't want to nominate a lib young parallel.

Clinton nominated a significant percentage of judges. If Gore won the election, the judiciary would look different now as well. Once the Dems lost the Senate, Bush had a freer hand. Hoping Clinton or Obama picks some judges who will be on the court for longer is not in my eyes the best long term use of resources.

It has value sure, but I find Brian and the other person you cited more convincing big picture wise.

I also find "unilateral disarmament" a bit misleading.

It's not like I want Obama to pick some sixty-five year old moderate conservative to replace Stevens since the person has a great legal reputation.

And, if the next administration doesn't "play fair" it's not like I want Dems to say "oh well, that's life ... we can only hope to change their minds with moral suasion."

But, if Obama is going to try something like the panel approach Mark Field cited, age/strong ideological picks cannot be the focus. OTOH, if Obama tries that and Republicans still don't play fair, blocking perfectly fine picks, rules of reprisal can be used.

Republican senators have supported various picks, however, particularly the home state senators whose involvement he sought out. Likewise, enough Republicans supported Sotomayor, though SC rules are a bit different anyway.

"There are many principled conservatives who wish to preserve the integrity of the judicial system."

Really? Do any of them currently occupy Senate seats?

IF I thought the Republicans in the Senate would modulate their approach one iota based upon the choices made by the Obama Administration, I might -- might -- be tempted to agree with you. But I think that Obama could nominate Robert Bork and a significant percentage of the Republican caucus would oppose him, just because Obama had nominated him.

Fundamental rights have been eroding for most of the last 30 years. Clinton's appointments did little to stem that tide. And today's "moderates" would have been VERY conservative when judged by Warren Court standards. Even modern "liberals" generally support a much smaller Bill of Rights than the one we had in 1970, and thus arguably represent a near-surrender on some issues themselves. 2009-style moderates will at best cement the degraded state of our civil liberties.

Micah and Mark, and everyone else who disagrees,

The conservative commitment and strategy in the past few decades to turn the bench rightward has been truly impressive. I say this in admiration and disgust. For this reason, I have a hard time disagreeing with the realpolitik thrust of your observations.

And Mark you are right to point out that liberals who threaten retaliation can perhaps broker agreements that temper the lack of conservative restraint. It appears that the Obama administration might be trying to do precisely that, informally, by reviving the former more collegial system of consulting in-state senators. The problem is that any compromise can be broken when the next administration comes into power.

My position is premised on faith in the power of ideals about law, and the restraining influence that follows from a commitment to those ideals. It seems to me that this has a more enduring quality than a tit for tat arrangement (the efficacy of which depends upon plausible threats of retaliation).

Even if there was a long term political alignment that favored liberals, I would not want a pervasively political judiciary in which judges try in every case to advance the liberal agenda. That would inevitably undermine law.

One of the most distressing aspects of modern political conservatism is that conservatives lost sight of the great value to society of a collective commitment to the rule of law, despite that conservatives have traditionally been champions of the rule of law.

We need to get back to a collective recognition that the ground rules for disagreement in a healthy polity requires commitment on both sides to acceptance of the law. We would better appreciate what is at stake if we examined those blighted societies that do not have this shared agreement.



"We need to get back to a collective recognition that the ground rules for disagreement in a healthy polity requires commitment on both sides to acceptance of the law."

The only way to do that is to enforce it. "Faith in the power of ideals about law", you say. What ideals?

The world is everything that is the case. 1 + 1 = 2, and when a lawyer argues that 1 + 1 = 0 if we do something, or 3 when somebody else does it, it's not because they share my ideals about logic or law. These people are irrational -- you cannot reason with them.

Have there been studies of just how attorneys get on "lists" as potential judicial candidates? To what extent are such "lists" political? Do the candidates "solicit" their appearances on such "lists" or are they "selected" by politicians or other interest groups? Is there a "grooming process" that identifies such candidates early on, watching over them, mentoring them, to confirm their credentials (ideology?) when they are considered for such listing? And does the latter question suggest why younger candidates are sometimes selected?

I recall years ago the concept of a judicial appointment as a reward in recognition of stellar performance as an attorney and his/her positive contributions to the legal profession and justice, requiring years of experience. Was I naive in thinking this? Since I started practicing law in 1954, incomes of attorneys have risen so significantly, that many attorneys fitting this perhaps naive concept cannot afford to accept a judicial appointment. So perhaps the candidates on current "lists" plan their legal careers with a view to judicial appointments, such that the job doesn't seek the man/woman but the man/woman seeks the job.

"These people are irrational -- you cannot reason with them."

Yup, that's my reaction, when somebody insists that the commerce clause extends to matters which are neither commerce nor interstate. Or insists that a "right of the people" is not a right, possessed by the people.

Modern conservatism is not terribly devoted to the rule of law. And it's a shame they've adopted liberalism's attitudes in this respect.

So if agriculture does not constitute commerce (per Thomas, J.), does this mean that federal statutes regulating agriculture (interstate and foreign) are unconstitutional?

Yes, if agriculture were not commerce, the federal government could not regulate it. The Constitution gives Congress authority to legislate on particular subjects, NOT anything it would be a good idea (Whose idea of a good idea?) to legislate on.

Part of honestly interpreting a document, is that it's going to sometimes mean something you don't like, or think is a bad idea. If your method of interpretation can't sometimes tell you something you don't want to hear, you're not interpreting, you're substituting.

Damn, there goes the PURE FOOD LAW! (Louis Armstrong's recording of "Loveless Love" incredulously questions the need for such a law.)

And what about bottled water (interstate and foreign), is that commerce?

Moderate? What the heck is that supposed to mean?

Is there as single Obama nominee who can be reasonably called an originalist or better yet an original meaning textualist?


Then the real issue is that the far left is unhappy that Mr. Obama is only appointing occasional legislators to the bench rather than open radicals like the Ninth Circuit's Reinhardt.

There is a certain irony, though, to the left complaining that the Obama race and gender based affirmative action policy for appointing judges is producing candidates the left thinks are not the best qualified.

I recall years ago the concept of a judicial appointment as a reward in recognition of stellar performance as an attorney and his/her positive contributions to the legal profession and justice, requiring years of experience. Was I naive in thinking this?

Yes. Best I can tell, judicial appointment has always been a reward for how much political influence you can muster. Usually that means money.

Since I mentioned Robert Axelrod above, I realized I should at least link to the basic principles his work demonstrated. Here's the crux of the findings for purposes of this discussion:

"Being "nice" can be beneficial, but it can also lead to being suckered. To obtain the benefit – or avoid exploitation – it is necessary to be provocable to both retaliation and forgiveness. When the other player defects, a nice strategy must immediately be provoked into retaliatory defection. The same goes for forgiveness: return to cooperation as soon as the other player does. Overdoing the punishment risks escalation, and can lead to an "unending echo of alternating defections" that depresses the scores of both players."

The Hamilton nomination is highly instructive. It's just not worth it to try and nominate moderates, when you're dealing with a fundamentally irrational opposition. There is no upside.

Oh gee Bart, as if you hypocrites actually cared about any of that. It's all just an excuse for doing what you want regardless -- you're a walking tautology.


You may have thought my question...

What ideals?

...was sarcasm. It wasn't: I asked because I was interested in a fuller explanation of what you meant.

It's instructive in another way: A Democratic administration can fail to even nominate candidates for empty judicial positions, and can have so many members of it's own party in the Senate that every last Republican Senator wouldn't be enough to manage a filibuster, and it will STILL blame Republicans for the empty positions.


"it will STILL blame Republicans for the empty positions"

The article inspiring this post notes that liberal interest groups are concerned with the Obama Administration.

The Administration defended itself saying it is doing to methodically and are taking extra care to get bipartisan input. Another article noted this resulted in returns, Sen. Lugar supporting the Hamilton nomination that Sen. Sessions opposes.

The Republicans still have some power -- the Senate goes slow and even a single senator can hold up the most supported/important legislation as shown by Sen. Coburn on military spending. So, yeah, unless they suddenly change all the rules, Republicans can slow this down.

But, though some spin is going on, Democrats are not just blaming Republicans for the time being taken here.

And, since their 60 vote majority is left to the likes of often conservative votes like Lieberman and Nelson of NE, the latter a thorn in Dawn Johnsen's side, and Dems don't lockstep like Republicans do, their unbridled power is far from clear.

We must trust principled conservatives in the next Republican presidency to stand up and oppose rigid ideological screening on their end.

And we must trust Hitler not to invade Poland. film izle film izle film izle film izle çizgi film izle anime izle erotik film izle Principled Republicans? You're living in a fantasy world.

I recognize that it's taken as an article of faith that the Bush II administration made a point of trying to push conservatives onto the bench as a matter of absolute policy. Some serious conservatives were certainly put on the bench (Bill Pryor for instance), but it seemed that a minority of his circuit (and even more district court) nominees were fairly moderate republicans. And the Clinton administration certainly nominated/confirmed a fair number of very liberal Judges as well. Has anyone ever actually documented that the Bush II administration's picks for the lower Courts were notably more ideological than the Clinton administration's with anything more than anecdotal data?

Yes, it has been documented that Bush II spent more of an effort to put conservatives on the bench than Clinton did liberals, including respecting the Supreme Court. This includes appointment of young conservatives, while some worry that Obama is selecting older moderates.

Thus, Clinton got an okay from Sen. Hatch beforehand for Ginsburg and Breyer, the former having a record on the D.C. Circuit that was centrist, while Alito had a strongly conservative record in cases on his circuit. Breyer as well has turned out centrist on the Court, explaining why many on the left were not gung ho about his appointment.

This was done by analyzing their records and how each President worked. I'm unsure what "anecdotal evidence" is at issue here.

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