Monday, November 11, 2002

Howard Bashman writes at some length about the process of federal appellate judging, arguing that it is extraordinarily rare -- and perhaps close to unheard-of -- for a federal appellate judge to issue a ruling based on his or her personal preferences, instead of basing it on the law.

Howard's post is well worth reading, and I don't have time right now to give a lengthy response. But I do think -- and I'm not at all sure that Howard would disagree -- that there are many many many cases in which federal appellate judges could come down either way. That is, precedents and other legal sources don't dictate the results in many cases; the lawyer on each side of the case can make a plausible argument that his or her side is due to win. Those cases don't meet the challenge that Howard has thrown down, challenging anyone to bring forward a case where a judge reached an obviously wrong result based on his or her preference. In the cases I'm talking about -- cases that constitute a sizeable percentage of the federal appellate docket -- a judge could in good faith go either way; and in those cases, it DOES matter very much what the "leanings" of the federal bench are. This is because they are human beings.

Federal appellate judges are often called on to decide, for instance, whether an employment-discrimination plaintiff has adduced enough evidence of discrimination, to warrant a trial; some judges tend to say "yes" more than "no," and some vice versa, even when presented with the same evidentiary record. I say this, without meaning to say that the ones who say "no" are liars or racists; but there are some who definitely lean towards rejecting employment-discrimination cases. In other types of cases, there are likewise judges who are more and less sympathetic to one side or the other -- and sympathies can make the difference in many cases.

Furthermore, a decision based in substantial part on a judge or panel's leanings -- even, again, when not "obviously wrong," still based subconsciously on leanings -- then becomes precedent and affects litigants in future cases. In other words, even when a particular case's outcome is pretty clearly dictated by precedent, that precedent itself was fairly often the result, at least in substantial part, of the prior judge or panel's leanings.

Make no mistake: if you have a bench full of very conservative people, then even if they are completely honest and upright, the decisions of that bench will move visibly towards what those judges think is best, even in the mundane sorts of cases. And this is why we should make conscious decisions about what people we want on our federal appellate bench, rather than indulging a faith that the politics and preferences of judicial nominees do not matter.

posted by sam 7:40 AM 0 comments

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