Let’s fight over judges
April 26th, 2008The Los Angeles Times published an editorial on April 12, 2008 decrying the “petty warfare between Republicans and Democrats over nominations to the federal courts.” It is a Hatfield-McCoy feud that “has been going on so long that no one is sure when it started,” said the editors, who traced it as far back as 1968 when Republicans blocked Lyndon Johnson’s nomination of Abe Fortas to be chief justice. The Times Board of Editors needs to keep an American history book on the shelf, where they could have traced battles in Congress over judicial nominees back to the administration of George Washington. Anyway, the Times finds this a sorry state of affairs and urges “in the interest of justice” that the Bush nominees now awaiting Senate approval “not be put on hold in the hopes that a Democrat will be elected in November.”
The editorial drew this letter to the editor from yours truly, published April 16:
“The Times’ call for an end to partisan fighting over judicial appointments is noble but naive. Interpretation of law is always, and unavoidably, subjective because of the nature of giving meaning to texts. The judge’s personal and political values always, unavoidably, play a role. A study of all federal court decisions under the National Environmental Policy Act during 2001-2004, for example, revealed that environmentalists won 60% of the time with district judges appointed by a Democratic president but 28% of the time with judges appointed by a Republican. They won only 17% of the time with judges appointed by George W. Bush. Therefore, partisan blockage of judicial nominees in the Senate is entirely proper because we have few other ways to keep these black-robed policymakers accountable to the citizenry.
Robert Benson
Professor of Law”
My letter triggered lively responses from a judge and from a number of my colleages in the law professoriate. The comments came to me by email, and not to this blog, but I will pass some of them on here as comments because they are worthy of a wider audience. I post them under the pen-name Publius, and I withold the authors’ names because I don’t know whether they wish to be publicly identified.
5 Responses to “Let’s fight over judges”
By Publius on Apr 26, 2008
From a Los Angeles Superior Court judge:
I read with great interest your letter to the Los Angeles Times dated April 16. I respectfully and completely disagree with your assertion that a “judge’s personal and political values always, unavoidably, play a role.” I have been a judge for almost 20 years and can state that my personal and political values do not influence my decision making process. I believe to my core that the majority of sitting judges base decisions that they make on the law and the facts. To use the word “always” when writing about the decision making process of judges promotes the politicalization of the judiciary and enhances the public lack of confidence in our judicial system. I would have expected a different view from a scholar such as yourself.
Response from Benson: Sorry we disagree. I’m sure you are sincere. Please see the chapter titled “How Judges Fool Themselves,” as well as the “Post-Script for Judges,” in my book, where I come to grips, respectfully and in detail, with your point of view. I will call as my witness judge Benjamin Cardozo on this, who nearly 100 years ago in “The Nature of the Judicial Process” wrote that objectivity “is beyond the reach of human faculties to attain.” He pointed to “the likes and dislikes, the predilections and prejudices, the complex of instincts and emotions and habits and convictions” at work in judges, and said that there has been “a certain lack of candor in much of the discussion of the theme, or rather in the refusal to discuss it, as if judges must lose respect and confidence by the reminder that they are subject to human limitations….None the less . . . . they do not stand aloof on these chill and distant heights; and we shall not help the cause of truth by acting and speaking as if they do.”
By Publius on Apr 29, 2008
From a law professor:
How can one resist?
Of course we are all influenced by our personal and political values. But I do not understand the good judge’s complaint to be a denial of that fact. Bob wrote “Interpretation of law is always, and
unavoidably, subjective because of the nature of giving meaning to texts.” This can mean many things, but it certainly is subject to plausible disagreement.
The idea that readers (judges) “give meaning to texts” is currently deeply controversial (however much it once was in vogue), and in its pure form has been expressly rejected, as far as I know, by every major legal philosopher working today (I don’t think even Fish currently pushes this view). Texts have meaning– which is elucidated through an act of interpretation.
Nor is the act of interpretation inevitably subjective. Whatever one’s religious or political beliefs, we all agree that the constitution provides for 2 senators for each state. Nor is this a trivial example: Sandy Levinson believes its constitutes one of the greatest evils in the current constitution. In fact, much–one could even so most– constitutional interpretation is relatively fixed (age of reps, senators, presidents, etc), regardless of subjective beliefs.
But even for those “hard cases” or vague or ambiguous clauses where there is controversy, there are a great many options judges have for resolving the issue that do not involve subjective decisionmaking. Lower courts, for example, are bound by the decisions of higher courts. Even in the raucus 9th Circuit, when I clerked it was commonplace for most search and seizure appeals to be unanimously decided on the basis of prior precedent. No doubt, there are exceptions, but this does not render the act of judging inevitably or even mainly subjective.
So, at most one might say that some provisions in the constitution are vague or ambiguous, and thus call upon some manner of construction that might on some occasions be decided in a subjective manner in which politics or religious beliefs play a non trivial role. To say, however, that the act of judging is inevitably subjective, however, is insulting and demonstrably untrue. I completely understand why a judge would take offense at such a suggestion.
Benson responds:
• “Insulting and demonstrably untrue” and understandable why a “judge would take offense”? Is there nothing to be said for candor and empirical accuracy? Please see the Cardozo quotation in the response to the previous comment. You might also consider Holmes, Pound, all the Legal Realists, the Pragmatic philosphers, and the entire cultural movements of Modernism and Post-Modernism, which have dominated almost everything but law and religion during the last 100 years. Law hangs on to its pre-modern Old Story as (some) religion hangs on to pre-Darwin creationism.
• No, the idea that readers give meaning to texts, rather than the other way around, is accepted, not rejected, by the major legal philosophers, not to mention philosophers of language, literary theorists, semioticians, anthropologists, political scientists, and others laboring in these vineyards, as well as common sense experience. (Stanley Fish, too.) If it consoles you, conservative colleague, know that my position on this is pretty much the same as Judge Richard Posner’s, and he and I are poles apart politically.
The disputes come over how readers give the meanings. I find the 19th century pragmatic philosopher Charles Peirce (crony of Holmes and William James), has the best, most anthropologicially accurate, answer, as explained by semiotician and novelist Umberto Eco, I rely on Peirce/Eco in my book, and come to this conclusion:
In creating meanings, interpreters–including judges–have extraordinary license, and are inescapably influenced by their own psychological character, values and personal contexts. In this sense, legal interpretation is subjective.
Individuals are not free, however, to make up legal meanings willy-nilly. We all view the world from a certain moment in history, which enables us to think certain things and not others. Moreover, our desire to persuade others to share our meanings, limits idiosyncratic interpretations. So we are constrained by our culture, but culture itself is highly subjective and always changing, and we can influence it.
• Culture at the moment has settled the meaning of “2 senators” so it would be a waste of time to challenge it legally, but I can imagine scenarios that would unsettle it. In my book, I take the 35-year age requirement for president, and unsettle it by various plausible scenarios.
• Your example of 9th circuit unanimous decisions in some classes of cases shows only that all judges have subjectively adopted values like efficiency, work-load reduction, and group status, in deciding these cases. They are not even trying to apply law, just imposing these shared institutional values for the workplace benefit of judges. For this reason, the political science literature rejects such evidence as invalid to measure agreement on legal interpretation or doctrinal objectivity. See The Interpretation Game, ch.4, n.15.
By Publius on Apr 29, 2008
From two different law professors:
Prof. A.: Two points. First, I marginally agree with the judge that “always” probably overstates the political nature of judging. “Often” is probably more like it. Second, a state trial court judge probably has less opportunity to interject her philosophical predispositions into decisionmaking than do appellate judges or even District Court judges. So, while I completely agree with the thrust of your letter, I can see why the judge takes umbrage with it.
Benson responds: You are using “political” more narrowly than I do. My claim is that personal and political values always play a role, and by “political” I include philosophy of government, philosophy of law, ideology, social policies, moral values, etc. I don’t mean that judges decide for or against litigants based on political party, a silly notion. As stated broadly, I stick to my claim that personal and political values always play a role, for any level of judging. How could they ever be avoided? Even if the issue is mundane–e.g., whether to take judicial notice of something not in the record–how could you decide it without applying your values on judicial efficiency, procedural fairness, adequacy of the record, etc?
Prof. B.:Apparently the Judge’s personal value, used in each case, is to use the law and facts. Thus he agrees with you. He uses his personal value of how to make decisions in each case. A very important personal value for judges is how to make decisions.
Benson responds: This comment gets it right! But I would point out to the judge that “using the law and facts” doesn’t amount to much as a meaningful judicial philosophy that guides or constrains. It is more like “getting exercise” than “playing baseball”–almost any move counts.
By Publius on Apr 30, 2008
From Professor Allan Ides:
The positivist approach to constitutional law is so patently out of line with reality (and what has always been the reality) that it would be impossible to say anything worth saying that doesn’t expose the idiocy of the position. There are two versions of the originalism/positivism argument, one is rankly political and was created as a conservative counterweight to the liberal rulings of the Warren Court. It was part of Nixon’s “southern strategy.” This version of the argument reduces to neat aphorisms that can be sold to an unsophisticated audience. It operates as a political knife in the guise of a theory. The second version is the academic one, which consists of a platonic discourse disconnected from reality. It begins with a theory instead of with an observation. That explains why the proponents of this version don’t understand Holmes or Cardozo, both of whom were pragmatic observers of the real world and saw law as an appropriate reflection of that reality. I don’t know of any practicing lawyers who are not realists or who practice according to this unreal view of the judicial function.
By Publius on May 5, 2008
From Professor Cesare Romano, co-author of The International Judge (Brandeis University Press, 2007):
I am non-violent, hence I would not heed the call of Bob to fight, but I cannot but laugh out loud when I read a veteran judge from the LA Superior Court who says “my personal and political values do not influence my decision making process”.
The fact that judges, of all colors, persuasions, at all latitudes and longitudes are influenced by their personal and political values is proven by the very fact that judges often change of mind throughout the course of their career on the same issues even when the law has not changed.
Justice John Paul Stevens, a key vote in upholding the death penalty 30 years ago, now says he believes capital punishment is unconstitutional as it violates the Eighth Amendment ban on cruel and unusual punishment.
The US Constitution says little about death penalty per se (there is reference to capital punishment in the 5^th Amendment), and as far as I know (but here my colleagues of US Constitutional law might correct me) black letter constitutional law on the issue has little changed over time. What ebbs and flows are the personal and political values of the justices (between generations of justices and, as Stevens proves, of the same justice), and the attitude of public opinion which might, god forbid, influence the decisions of those highly adamant servants of law and justice. You do not need to amend the Constitution to abolish death penalty. You just need justices who do not believe in it.
The idea that judges are not influenced by their personal and political values is a useful fiction, as it helps provide them with a modicum of protection from the vagaries of politics, but it is a fiction and must be understood as such, especially by those in the field. We trust judges not because we think they are automatons, rigidly applying the law, but because we trust their… judgment, hence how we pick them matters a lot.
We need to be careful in picking judges (the initial spur for Bob’s letter) because they will have to interpret the law and the enterprise is, yes, a science, but also a human activity with all that this entails. Completely denying subjectivity does not help, as much as saying that all law is subjective.
In civil law systems law-making by judges is total heresy but there are still big debates about how they are picked. How is that possible? Because we recognize that the human factor is crucial and subjectivity will inevitably creep in even the most objective judge.
In the US, the question of the role of judges in interpreting the law is probably trickier at the top than the bottom. It is not that /some /words in the US constitution are vague. The issue is that the US Constitution per se does not say much. It is way shorter and vaguer than most constitutions of modern nations (actually, I cannot recall one shorter) and thus there is ample room for law-making by judges. That US judges are more lawmakers than most judges around the world is not an opinion. It is a fact due to the common law tradition of this country. Yes, precedents bind, but we all know that lawyering is all about splitting hairs to prove why the undesirable precedent is not applicable in the present case.
In my latest book on international judges I try to explain how picking well international judges is probably even more crucial. Like every judge they have to move within the confines of the law but those borders, which should constrain them, are vaguer and less patrolled than in the case of their domestic peers, and if they cross the line there is little in the way of checks and balances.
Benson responds: This is good, pragmatic counsel with which I largely agree. I would quibble only with the traditional tip of the hat to law as a “science.” Most of the comment undermines any claim that law is a science.