Author Archives: ecb123

From BreakingLegalnews.com:

Controversial court nominee survives Senate test

Political and Legal – POSTED: 2009/11/18 06:23

Democrats on Tuesday crushed a Senate filibuster against a controversial appeals court nominee, demonstrating to Republicans they can’t stop President Barack Obama from turning the federal judiciary to the left.
The 70-29 vote limited debate over the qualifications of U.S. District Judge David Hamilton of Indiana, and assured his elevation to the Chicago-based appeals court. Sixty votes were needed to end the filibuster, but confirmation only requires a simple majority of the 100-member Senate.
Ten Republicans repudiated their own party leaders and voted to limit debate. The Obama administration made a crucial decision from the outset by getting the support of Hamilton’s home-state Republican senator, Richard Lugar.
The vote emphatically warned Republicans that with only 40 senators, they’re too outnumbered to prevent Obama from making major inroads into a judiciary that was populated over eight years with conservative judges chosen by President George W. Bush.
Republicans have objected to holding a vote on Hamilton’s confirmation since June, when the Judiciary Committee reported his nomination favorably to the full Senate.
Conservative Republican senators and their judicial-watching outside groups then launched a major political assault on Hamilton.
They criticized his rulings against Christian prayers in the Indiana legislature and against a menorah in the Indiana Municipal Building’s holiday display.

So building off my comments from yesterday I’d like to raise the issue of what political science research has to say about the legitimacy of judicial institutions, point out an apparent discrepancy in research on different aspects of our legal system, and ask (somewhat provocatively) what our role is as academics in informing the general public about the “realities” of how that system works when they seem to operate in stark contrast to traditional understandings of what our legal system is designed to do.
First, starting with Pritchett (1942), decades of behavioral research reveals that judges vote disproportionately in favor of outcomes that are consistent with their political preferences. These results stand in direct contrast to the notions that unelected judges derive authority from their expertise and ability to act as unbiased “interpreters of the law.” Now clearly we need some sort of third party arbitrators to resolve disputes that inevitably arise between people in our society – the question is why do judges get to make those determinations. The answer according to democratic theory is because they are experts in legal interpretation and will make judgments according to that expertise. Empirical findings however reveal the strong influence of other factors including political preference and ideology. Concerns about the equal administration of justice and the fairness of judicial outcomes are necessarily implicated when outcomes have more to do with the idiosyncratic preferences of who is on the bench than what the law requires under particular circumstances. Now this is not really the fault of the framers – they didn’t know better than to put their faith in traditional notions of legitimate judicial authority deriving from objective exercise of legal expertise – but after 50 years of empirical research don’t we know better now? Isn’t it time to reconcile outdated notions of judicial authority with current understandings of influences on judicial behavior? Political scientists have seemed content with demonstrating the fallacy of formalistic notions of legal decision making over the last half century – but we haven’t really adequately dealt with the normative implications of these findings.
More than this, research on public opinion on the legal system seems to celebrate the fact that citizens generally hold the courts and judges in high esteem compared to other institutions and political officials based on what Gibson and Caldeira have called “legitimizing myths” about how judges and the court system operates. Is this really cause for celebration? Should we be happy that people come to value courts based on misconceptions about how they operate? There is even research that suggests that people can hold courts in high esteem, at the same time they understand that political factors often come into play in the decisions of judges. Shouldn’t someone be pointing out the inconsistency in these two beliefs if part of what our legal system is designed to do is treat individuals equally without bias?
Now of course as someone who has been assigned the role of “guest blogger” my comments here are intentionally designed to be provocative. But I guess I’m wondering what the larger role of academics is in shaping public perceptions of the political institutions that are the subject of our research. The issue seems to come to a head whenever a new Supreme Court justice is nominated. Political scientists often want to throw tomatoes at C-SPAN when we hear judges talking about being umpires, objectively calling balls and strikes, because it is so contrary to our understanding of the judging in the legal system actually works. But the dog and pony show has a purpose. We, as a society, need our myths. OR we need a completely different justification of why judges get to make the decisions they do. To debunk the former without coming up with the latter would cause extreme discomfort if citizens started to really think about the democratic implications of what we do as empirical scholars. Maybe it’s a good thing that they don’t as a matter of routine. But to what extent to we have an obligation to point out these inconsistencies between the unrealistic requirements of democratic theory and the way the legal system actually works…