November 03, 2003

The ideology of a judge still matters

As a 1L who has just read Lochner for the first time, the debate over Janice Brown's nomination to the federal appeals court has caught my attention. As an embryonic lawyer, my layperson sense of things hasn't been educated out of me yet, and this layperson sense is telling me that what some of the academics seem to want is both impossible and undesirable.

Much of the debate is centered on the question of whether Justice Brown's views on Lochner are outside the legal mainstream. What I want to address instead is the concurrent debate over whether her ideology should be the focus of the confirmation process.

Lawrence Solum and David Bernstein think not. They criticize the New York Times editorial that argues against Justice Brown's confirmation, and suggest that the proper criteria for evaluating her fitness for the bench is, as Solum puts it, whether or not she tries to decide cases "on the basis of the law and not on the basis of [her] own political ideology or views about what the law should be."

While I agree that this is an admirable (and perhaps an indispensable) attribute for an appeals court judge, I can't agree with Solum that we ought to simply disregard the nominee's ideology when we consider whether or not to confirm her nomination. Nor can I agree with what I (provisionally) believe to be another of Solum's points: that once we find a judge with the "judicial virtues" that he describes, the ideology of this judge will have no substantial effect on the results of the cases she decides.

Why ideology matters (now, more than ever)

If you ask an educated citizen (as opposed to a legal theorist) whether a judge's ideology should matter, you'll almost surely hear a vigorous "yes." Remember, we haven't forgotten Bush v. Gore, where all the conservative justices lined up behind a per curiam ruling that they knew would make George W. Bush President, and the liberal justices all dissented from this ruling. The average well-educated citizen knows that big political questions can be and are decided by the courts. They know that the conservative judges often bring about the kinds of results that conservatives are fond of. Lawrence v. Texas demonstrates that the liberal judges do the same thing.

For the average citizen, the analysis typically stops here. The question of whether any of these results are founded on good or bad reasoning is irrelevant. After all, why should it be? A result is a result, both the well-reasoned and the poorly reasoned ones, and the results that judges arrive at carry the weight of "law." Which means that, well-reasoned or not, we all must live in accordance with them. There are many reasons for the bitterness in the Judiciary Committee over judicial nominations, but first among them is that the Senators' constituents know that the choice of federal judges will probably affect their lives in significant ways. And they also know that the ideology of a judge is often a good predictor of whether or not these affects will be welcome or not.

The widespread belief that the legislative process has been captured by special interests, and is not responsive to the general political will of the people, only increases the importance of a judge's ideology. If it were the case that the public believed the legislative process was responsive to their interests, they might be more easily be persuaded that the damage created by "bad" judicial decisions--and by "bad" they mean decisions producing the "wrong" result-- could be mitigated more easily. The legislative branch, at least, would be on their side. But if the legislative branch isn't a reliable advocate for their interests, it is all the more important that the judicial branch be an advocate. Or at least, that the judiciary not be actively promoting undesirable policy.

All this will, I think, make some legal theorists cringe. After all, if the public is uninformed about the differences between principled judicial opinions and opinions based solely on ideology, that is no reason to shift the focus of judicial confirmation hearings from "judicial virtues" to ideology.

At least, not if you believe that judicial virtues can be separated from ideology.

Judicial virtues can't be separated from ideology

Here's the short, pithy argument:

One of the most esteemed and widely-valued judicial virtues is a love of justice. Justice is inextricably a matter of ideology, almost by definition. Since even a 1L knows that "the law" isn't just there in the text of a case or of a statute, anyone asked to interpret a case or a statute must interpret the text. A virtuous judge will try to interpret the text in the way most consistent with justice. But since a judge subscribing to ideology A will inevitably hold a view of justice colored by her ideology, her opinion of the most "just" interpretation will not necessarily be the same as a judge subscribing to ideology B who interprets the same text with the same concern for justice.

To believe otherwise is to bury your head deep in the sand.

Of course, this is not to say that if you group all judges with ideology A together and ask them to interpret the same text, that those judges who possess more of the "judicial virtues" would always arrive at the same result as those judges who share their ideology but have less of a concern for justice, less of a "judicial temperament," or less "learning in the law." Ideology isn't dispositive. But neither are those things which Solum calls the "judicial virtues." Ideology still matters.

Should we look for virtuous judges? Of course. Should we attempt to "de-politicize" the judicial confirmation hearings in the Senate? We can't, and we shouldn't.

Posted by Carey at November 3, 2003 09:34 PM