Howard J. Bashman's appellate columns, etc.

Activist U.S. Court of Appeals Judges: Myth or Reality?

By Howard J. Bashman
Monday, December 9, 2002
Perhaps now that a Republican President resides in the White House and Republicans possess a slim majority in the U.S. Senate, the contentious battle over whether certain nominees to serve on the Nation's federal intermediate appellate courts are too conservative will be reduced to a dull roar. But I doubt it.

It has been more than eight years since a vacancy last existed on the U.S. Supreme Court. During that time, special interest groups on the right have opposed certain Democratic nominees to the U.S. Courts of Appeals as too liberal, and more recently special interest groups on the left have opposed certain Republican nominees as too conservative.

The intricate focus on the personal and political views of nominees to serve on the U.S. Courts of Appeals is quite misguided, for two reasons.

First, federal intermediate appellate court judges have exceptionally little opportunity to engraft their personal or political preferences onto the law.

Second, by focusing on a nominee's personal or political views, the U.S. Senate often fails to examine closely enough whether a nominee possesses the exceptional sort of intellectual ability, love of hard work in exchange for relatively little pay, and desire for excellence necessary to serve with distinction. A federal appellate judge who lacks the ability or desire to produce consistently well-reasoned and persuasive opinions has a much greater likelihood of undermining the coherence of a circuit's law than do smart judges with a far left-wing or right-wing perspective on the law who respect the proper role of the judiciary in our constitutional system.

Instead of thinking about this point in the abstract, consider the hypothetical case of state court Judge Unfriendly. He is aptly named because he is, insofar as his personal and political preferences are concerned, most unfriendly to the liberal political and social agenda.

During the time that Judge Unfriendly served in his State's Legislature, he regularly voted to limit the availability of abortions except where necessary to preserve the life or health of the mother. He also believes that Roe v. Wade reached the wrong result as a matter of federal constitutional law.

Judge Unfriendly is a fervent supporter of the death penalty. He thinks that the U.S. Supreme Court's recent federalism-Eleventh Amendment-States' rights decisions have reached the correct result. He opposes all forms of preferences for women and racial minorities. And, while serving in the Legislature, he regularly proposed inserting the words "under God" into various items of legislation.

Now, let us assume that President George W. Bush has nominated Judge Unfriendly to serve on one of the regional U.S. Courts of Appeals. Should the U.S. Senate confirm him to sit on a federal intermediate appellate court?

I believe the answer is "yes" so long as Judge Unfriendly understands and agrees to respect the recognized boundaries that exist to constrain the role that federal intermediate appellate judges play in our system of justice. A nominee to a federal intermediate appellate court must recognize that his or her personal or political views, to the extent that they run contrary to existing law and the reasoning that produces and flows from it, should play no role whatsoever in the decision of an appellate case.

Similarly, candidates for federal appellate judgeships must recognize that the process of deciding cases does not begin and end with the answer to the question, "What result do I prefer here, based entirely on my own personal and political views?" Rather, a federal intermediate appellate judge's personal and political views about the law should only merit consideration, if ever, in those very few cases where all of the traditional sources for finding the "right answer" have been examined, but that answer remains elusive.

To those whose understanding of the work of a federal intermediate appellate judge is limited to the knowledge gained from viewing Senate judicial confirmation hearings, it might seem that such judges face a steady diet of appeals presenting the most intractable social and political issues of our time. In truth, however, the daily labors of federal intermediate appellate judges are not nearly that fascinating. With immaterial exceptions, anyone disgruntled by a final ruling of a federal district court is entitled to appeal as of right to a federal appellate court. And, to the judges and law clerks who work on those appellate cases, it often seems that everyone does in fact appeal.

Somewhere between sixty to eighty percent of all appeals are easily resolved, because there is a clear right answer that the law compels. In the vast bulk of the remaining cases, while the right answer may not be as clear, the proper resolution becomes apparent once a judge examines all relevant authorities and considers the questions presented in the context of the overarching framework of existing law.

True, each year federal intermediate appellate judges do confront a small number of cases in which the correct result is seriously in doubt. Yet such especially difficult cases do not always, or even most of the time, involve pressing social or political issues. And even in such a case -- an appeal presenting an intractable, politically charged issue -- who believes that an intermediate appellate judge should resolve the matter based on his or her own personal or political policy preferences, instead of relying whenever possible on more traditional tools of judicial decision-making?

For example, no one believes that Justices Antonin Scalia and Anthony M. Kennedy prefer flag burning as a method of political expression simply because they provided the decisive votes in favor of a majority opinion which held that the First Amendment protects burning the American flag as a form of political protest.

As Justice Kennedy explained in his concurring opinion in that case:

The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result. And so great is our commitment to the process that, except in the rare case, we do not pause to express distaste for the result, perhaps for fear of undermining a valued principle that dictates the decision.

Similarly, it is clear that not every one of the five U.S. Supreme Court Justices who in 1992 voted in Planned Parenthood of Southeastern Pa. v. Casey to retain the "essential holding" of Roe v. Wade believed that Roe was correctly decided in the first instance.

Those most skeptical see the entire legal system as presenting unbounded opportunity for subterfuge because seemingly neutral rules can be invoked to reach results that judges personally or politically prefer the most, even though those rules would produce a different result were it not for the judges' personal preferences. Others may express the view that liberal judges tend to rule more often in favor of plaintiffs who claim discriminatory treatment or in favor of criminals who contend their convictions were unlawfully obtained, and that the opposite holds true where conservative judges are concerned.

I cannot deny that individuals serving as federal intermediate appellate court judges could wrongfully employ seemingly neutral rules of law to reach results that are in fact dictated solely by the judges' own personal or political preferences. And I cannot even deny that courts packed with liberal judges may reach more liberal results than courts packed with conservative judges, even in the absence of any instances of law being used as a subterfuge for inappropriate judicial conduct.

Nevertheless, the best judges work tirelessly to decide cases based solely on the law, without regard to their own potentially conflicting personal or political views. And federal intermediate appellate court judges who overreach by arriving at results that are other than what the applicable law dictates often do so in ways that cause no long-term harm. Thus, such decisions will often be issued as non-precedential rulings, or the legal principles that the ruling espouses will be correctly stated, although erroneously applied. Moreover, where federal intermediate appellate judges go too far afield and issue rulings of significance based on personal or political beliefs that are contrary to what the law is or reasonably should be, the U.S. Supreme Court has shown itself ready and able to step in to provide needed correction.

There is no reason to doubt that individuals are capable of putting aside their deeply held personally and political views when deciding cases as federal intermediate appellate judges. Take, for example, Circuit Judge Marsha S. Berzon. After President Clinton nominated her to serve on the Ninth Circuit, Senate Republicans held up her confirmation for two years. One particularly conservative Senate Republican, New Hampshire Senator Bob Smith, issued a press release stating that he was opposed to Berzon's confirmation because, among other reasons, she had previously "espoused pro-abortion causes."

Judge Berzon was one of eleven Ninth Circuit judges on an en banc panel that was drawn to decide a case in which physicians who provided abortion services sued anti-abortion activists who had distributed flyers and posted information on the Internet that could be understood as calling for the killing of those physicians. The question in the case was whether that speech was, or was not, protected under the First Amendment.

As it turned out, Judge Berzon was one of five judges who dissented and who would have held that the anti-abortion protestors' speech was protected under the First Amendment. Thus, even if Senator Smith was correct that Judge Berzon, before she joined the Ninth Circuit, "espoused pro-abortion causes," her actions as a judge showed that she could put aside whatever personal preferences she has and follow her understanding of the law even if that meant concluding that the First Amendment protects the speech of anti-abortion activists who could be understood as calling for the death of abortion providers.

Senators should not reflexively oppose federal intermediate appellate court nominees who do not hold centrist political or personal views about issues likely to come before the courts, because judges are required to put -- and each day do put -- their political and personal views aside to decide cases according to the law. What the Senate should strive to ensure is that nominees possess a great deal of intelligence, reason, diligence, and judgment, and that nominees understand and will respect the principle that being a federal judge requires an individual to decide cases according to the law, rather than according to personal preference.

This article is reprinted with permission from the December 9, 2002 issue of The Legal Intelligencer © 2002 NLP IP Company.