BY TAMMY PETTINATO
In certain cases, the votes of federal judges can be predicted based on the ideology of the president who appointed them, according to research by Cass Sunstein of The University of Chicago Law School. Sunstein joined Professors Charles Fried and Martha Minow this past Monday for a discussion on the topic “Beyond Bush & Estrada? Ideological Judges and the Confirmation Process” as part of The Dean’s Forum. The discussion focused on research that Sunstein has collected in his new book, Why Societies Need Dissent, which was based, in part, on talks he delivered last year as part of the Holmes Lecture Series.
Sunstein’s findings further concluded that this effect is magnified when several judges on a panel are of the same ideological cloth. Said Sunstein, “Our aspiration to civil equality is jeopardized by this finding.”
Characterizing his findings as “a point for legal realism,” Sunstein offered a number of possible solutions to counteract the effects of political ideology on case outcome. He said that the burden for ensuring intellectual diversity lie first with the president, who ought to make a concerted effort to appoint judges who will not be in consistent agreement with one another. If the president can’t or won’t do this, Sunstein feels that this task should fall to the Senate.
Comparing the role of the federal judiciary to the adjudicatory functions of independent regulatory commissions, which often require that both Republicans and Democrats hold leadership positions, Sunstein also suggested that the chief judge in each circuit should ensure that an ideologically mixed panel of judges hear at least the most controversial of cases. He further asserted that the Senate has a duty to bar the confirmation of ideological extremists. Speaking of recent Bush nominee Janice Rogers Brown, he said, “Outliers and extremists of this sort shouldn’t be confirmed.”
Fried spoke next, criticizing Sunstein for the methodology he used in determining the ideology of the judges – namely his use of the ideology of the president who appointed the judge rather than the ideology of the individual appointee. Pointing out that the notoriously liberal Supreme Court Justices Warren and Souter were both appointed by Republicans, Fried argued that the true issue was not ideology, but rather, “Is the judge judging lawfully or lawlessly?”
Fried also criticized Sunstein for allowing his findings to be used for what he called “bad faith” purposes – namely giving Democrats an excuse to jettison the appointments of Republican judges in the name of intellectual diversity. Said Fried, “Cass’s work, as important as it is, is completely irrelevant to the purposes” to which Democratic Senators were using it. Pointing out that Sunstein had allowed Senator Schumer to release some of his findings on the Senate floor before the publication of his book, Fried said, “Cass is not entirely innocent of the misuse” of the findings.
Minow was the last on the panel to speak, and she focused on the parts of Sunstein’s findings that he didn’t highlight in his own presentation. Namely, she said that the fact that his study showed that ideology did not affect criminal cases, property cases or cases striking down congressional statutes based on the commerce clause was much more crucial to formulating solutions to the problem of ideologically predicted outcomes than Sunstein asserted.
Minow also pointed out that Sunstein had glossed over his finding that cases dealing with abortion and capital punishment tend to fall strictly along ideological lines and are much less influenced by diversity on the court. She characterized this finding as positive because it reflected a theory of adjudication that encompassed more than just the law, which was appropriate in such ideologically charged issues. “We have law, we have morality and we have politics going on here,” said Minow.
Minow asserted that these other findings were important in understanding the heart of Sunstein’s studies, which focused on cases where ideological diversity was in fact predictive of case outcomes. She said that the major contribution of Sunstein’s findings was that they helped shed light on “where the rule of law is working and where it isn’t.”
The panel then opened up for audience questions, and the three panelists gave their views on the confirmation process, including commentary on some recent issues such as the failed appointment of Miguel Estrada, the policy of the Clinton administration to appoint more moderate judges and the Republican attempt to forge a more right-wing federal judiciary. Fried took a few jabs at Clinton and some current Democratic Senators, calling the former uncommitted to the fight for a more liberal judiciary and the latter hypocritical. Both Sunstein and Minow countered this claim, with Sunstein criticizing Fried’s assertion that Democrats had rejected Estrada because he was a “conservative Hispanic” and Minow asserting that Clinton’s lack of enthusiasm for liberal judicial appointees was actually the product of a legal philosophy that emphasized good law over ideological bias.
The discussion lightened up after Fried criticized current Democrats for not allowing Estrada’s nomination to reach the Senate floor, with Minow reminding him that Dean Kagan, who was serving as moderator of the discussion, had lost her own nomination a few years previously when Republicans had used the same tactic. “There’s politics going on in the Senate. I’m shocked,” Minow said, eliciting laughter from both the panel and the audience.