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"The Politics of the Federal Bench"

By Jack M. Balkin

The Washington Post has an article today about The Politics of the Federal Bench: Obama's Appointments are Expected to Reshape the U.S. Legal Landscape. In addition to likely taking over the 4th Circuit, according to the article, "Democracts will probably also gain control of the 2nd Circuit." "The 3rd Circuit...also will move to Democratic control." The 1st Circuit "will gain a narrow Democratic majority..."

"Obama has a huge opportunity," said Arthur Hellman, a University of Pittsburgh law professor who is an authority on federal courts. "In a very short time, signficant segments of the appellate courts, which are the final authority in all but a tiny handful of cases, will be dominated by Democratic nominees."

There is a clear suggestion in all this that judges decide cases based upon their political views. So instead of judges ruling based upon the law, we have "Republican Courts" and "Democratic Courts."

It is grossly misleading to describe matters in this way. Federal appellate courts, after all, render unanimous decisions over 90% of the time, despite being divided between Republican and Democratic appointees. Yes, politics matters at the margins, and beyond that for individual judges who fail to exercise self-restraint (deserving our condemnation). And some courts are more politicized than others. But it is wrong to baldly suggest that these courts will be Democratic or Republican "dominated."

Casual skepticism like this, from the right and the left, is easy to indulge in and makes for good quotes, but it comes with a price.

The forces on both sides are gearing up for a battle. It's a good bet that Republican activist Manual Miranda, the former head of the "National Coalition to End Judicial Filibusters," will soon be a staunch advocate for judicial filibusters. On the other side, the president of the People for the American Way has "vowed" to prevent "extremists on the right from hijacking the process."

I wish both sides would stay home.

P.S. Each time I write a post on this subject, I vow it will be my last. I hate sounding so naive and old-fashioned (on behalf of a losing cause?).

Full post as published by Balkinization on December 08, 2008 (boomark / email).