Sunday, August 11, 2002

Jeffrey Rosen on the confirmation battles In today's NYT Magazine, Jeffrey Rosen writes about the confirmation battles over the federal appellate bench. It's a perfectly good article in some ways, but to my eye the article naively (I say "naively" rather than "sneakily" because I have no reason to doubt the guy's motives) underestimates how much the ideology -- or, to speak more broadly and less inflammatorily (if that's a word), the leanings -- of a lower-court federal judge matters. The key passage in the article, in this regard, is this:

"the Senate and the interest groups have created the misleading impression that lower-court judges are more polarized and less constrained than they actually are. In fact, on the best functioning appellate courts, there are clear right and wrong answers in most cases that judges, Democrats and Republicans alike, can identify after careful study of the complicated facts and relevant precedents."

This passage is wrong or at least incomplete in two important respects, and -- in those respects -- underestimates the effect of a judge's (or potential judge's) leanings.

First, there are many many cases in which there are no "clear right and wrong answers". These are not only the hot-button social issues. Judges disagree often in mundane civil cases, for instance, over whether the plaintiff had produced enough evidence to warrant a trial, and so forth.

And second, even in some cases where there is an obviously "right" answer, some judges pick the "wrong" answer instead. (See, for instance, this case, in which the Supreme Court unanimously reversed a federal appellate court that had truly gone out on a limb in favor of employers in discrimination cases.).

In both of those types of situations -- where the case could reasonably go either way, or where the court (to put it charitably) goofs -- it is surely uncontroversial to recognize that some judges are more likely to pick the "liberal" answer and some more likely to pick the "conservative" one. (Sure, these "liberal" and "conservative" labels are vast oversimplifications. So I'll be more concrete. With specific reference to the areas in which I practice most often, some judges are more likely to rule for the employee/the consumer/the injured person, and other judges are more likely to rule for the employer/seller/manufacturer.). And it's not always easy for an outside observer to identify cases in which a judge's leanings have impacted the decision. For one thing, many appellate decisions are unpublished and -- especially in the Eleventh Circuit, where I practice most -- are never read by anybody but the parties to the case. And for another thing, even when the opinion includes no eye-popping decision about a pure question of law, still the judges' leanings may have impacted the judges' view of the evidence (and thus their decision).

Am I saying something outrageous, that will make judges hate me? Of course not. Here's the thing: EVERY PRACTICING LAWYER knows that some judges are more likely to rule (for instance) for the employer than are other judges. And some people who want to be judges will have the urge (conscious or not) to rule in favor of the corporation, and against the individual, in every case. If they get to be judges, they will have the opportunity to give free rein to those impulses, in ways that the Supreme Court can't police. So why should we pretend during confirmation battles -- as Rosen would apparently have us do, in saying that lower-court judges are quite "constrained" and that the answers are preordained in "most" cases -- that this isn't the case? I'm all in favor of confirming qualified mainstream people to the federal bench. But let's make sure that they are actually mainstream -- and reject the ones that aren't -- rather than comforting ourselves with the naive idea that even the ones on the radical fringe can't do much harm.

UPDATE: Spouting off in this vein makes me remember something that one federal appellate judge said of another, several years ago (I heard it from the speaker's law clerk, soon after it was said): "When _______ ____ sits down to decide a case, she asks herself this series of questions: (1) What decision can I make that will most help the Republican Party of the United States? (2) What decision can I make that will most help the Republican Party of the State of ____? and (3) What decision can I make that will most help ME?"

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