Justice

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Almost a year and a half ago, I wrote that the judiciary has become so politicized that it’s lost sight of its core mission:

Federal judges are appointed for life… so they will be independent of politics.  Yet between the absurd belief… that the president is entitled to extreme deference on his judicial nominees, and the requirement of a simple majority to confirm, it’s really not that difficult for a President to stack the courts with like-minded political extremists….

(…)

The upshot of all this is that the judiciary is becoming a second legislature, where cases are at least as likely to be predetermined by the political orientation of the court’s members as they are by objective interpretation of the law….

Flash-forward to yesterday, and Cass Sunstein’s Washington Independent piece about activism and partisanship in the judiciary.  He studied 20,000 judicial decisions over the past several years and found, to my total non-surprise, that both Republican- and Democratic-appointed judges, from the Supreme Court on down, tend to be partisan in their voting patterns – and that the conservative Supremes are a lot more activist (i.e., more likely to overturn a government agency’s decision) than the "liberal" ones.

From his conclusion:

…[P]artisan voting is a serious problem in the federal judiciary. If the EPA issues a regulation that is aggressive in cleaning the air, or if the National Labor Relations Board resolves a dispute in favor of a union, a panel that consists solely of Republican appointees is unusually inclined to strike it down. That’s indefensible. No one should approve of a situation in which the fate of an environmental regulation depends on whether a lower court panel consists of one, two or three Republican appointees.

(…)

TThe lower federal courts… have been stocked with appointees of Presidents Ronald Reagan, George H.W. Bush and George W. Bush. The voting behavior of appointees has been clear: They show a distinctive tendency to strike down agency decisions that do not follow a conservative line.

Here, then, is a major warning for the next administration – and a potential problem for democracy itself.

What. I’ve. Been. Saying.  The judiciary’s purpose is to dispassionately interpret the law to ensure that government complies with it, not to give discredited political parties ultimate veto power from beyond the electoral grave.

The question remains: How do we fix it?  I stand by my original answer, which was to eliminate mindless deference to the president on nominees, and to raise the confirmation threshold to a supermajority of 60 or 67 votes.  Depending on the opposition, that should push presidents of both parties to nominate highly qualified jurists who are competent and nonpartisan enough to satisfy both parties. (No, not Althouse.)

I’m not a big fan of moderates in the legislature, but judges should be non-ideological.  I want rulings based on law, not numbers.

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  3. Senate Debate on Sotomayor Continues; As Does “Bipartisan” Drumbeat
  4. SCOTUS: Selecting Justice, A Live Chat with CAC’s Doug Kendall
  5. Conservative Justices Roberts, Scalia, Alito, Thomas Say Virtually Bribing Judges is Okay