Tuesday, May 10, 2011

Judicial Impartiality

Phillip Klein reports that a three-judge, 4th Circuit Court of Appeals panel has been selected at random to hear appeals of two lower-court cases about the constitutionality of ObamaCare. It consists of two Obama nominees and one Clinton nominee. “The makeup of the U.S. Fourth Circuit of Appeals panel is crucial,” Klein observes, “because in lower court rulings so far, Democratic judges have upheld the law while Republican judges have declared it unconstitutional” (my emphasis).

You have to admire Klein’s choice of words. “Crucial” is the perfect adjective because it straddles “extremely important” and “decisive.” So it enables the reader to appreciate the overwhelming likelihood that judges appointed by Democratic presidents will hold that ObamaCare is constitutional—and that Bush appointees would likely go the other way—without surrendering to the cynical thought that they’re all a bunch of political hacks.

Yet why shouldn’t we surrender to that thought? There’s no getting around the fact that, when it comes to the constitutionality of ObamaCare, the party of the president who appointed a federal judge is the best available predictor of the legal conclusion that judge will render. That means that, in all probability, the 4th Circuit’s holding will turn less on autonomous legal reasoning than on the outcomes of a few presidential elections and the operation of the randomizing device that it uses to staff judicial panels.

How disturbing is that? If it is disturbing, the fact that the Supreme Court, and not the 4th Circuit, will have the final say on ObamaCare’s constitutionality doesn’t make it any less so. Granted, it will be a lot harder to predict what the Supreme Court will decide because it’s more evenly divided between Republican and Democratic appointees and its justices are less constrained than circuit court judges by legal precedents.

Yet we shouldn’t confuse the unpredictability of a judicial decision with its legal integrity. All legal decisions on politically charged constitutional issues turn on accidents of political history.  What the Supreme Court holds respecting ObamaCare's constitutionality, for instance, may well have something to do with how those hanging chads were counted during the Florida recount after the 2000 presidential election. That’s an unsettling consideration only if you cling to the notion that legal methodologies so constrain a judge’s discretion in politically charged constitutional cases as to nullify all other practical considerations.

The law isn’t, and can’t be, like that. A judge has done her job when she demonstrates that her decision answers to a respectable legal methodology that identifies a reasonably compelling legal rationale. Those of us who can’t peer into a judge’s soul can never know what the real motives behind the judge's decision were, and it wouldn’t matter much if we could. The authority of a judicial decision is a matter not of the judge’s psychology, but of her discharging her institutional responsibilities by following all the procedures designed to filter out various forms of bias. That doesn’t mean that all extra-legal influences on a judge’s decision can, or should, be filtered out. It just means that it’s civically irresponsible to regard that those that can’t be filtered out as breaches of impartiality that impugn a decision's authority.

Federal judges have to come from somewhere. In our system, they’re nominated by duly elected presidents  subject to Senate confirmation and (except in the Supreme Court, certain specialized federal courts and en banc proceedings in the circuits) assigned randomly to particular cases. A president wouldn't be discharging his responsibilities as an elected public official if he didn't try to choose choose judges likely to make judicial decisions that accord with his  judicial and political philosophy. 

As far as I know, nobody has come up with a better of way of maximizing the probability that litigants in federal court will stand before an impartial judge. Until someone does, calling the judges we disagree with political hacks, while pretending that those with whom we agree render pristinely legal judgments, is just our way of stroking ourselves.

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