[F]ederal judges are not just politicians in robes, though that is part of what they are.
(Additional highlights from Adam Liptak’s article about their research, after the jump.)
Liptak’s piece begins by discussing Coalition to Defend Affirmative Action v. Regents of the University of Michigan, the controversial Sixth Circuit decision holding that Michigan voters could not — yes, not — ban racial preferences in admissions to the state’s public universities. The case was decided 8-7 by the en banc court, and here’s how the vote went down:
Every one of the eight judges in the majority was nominated by a Democratic president. Every one of the seven judges in dissent was nominated by a Republican president. (There was a wrinkle, but it was a small one: Judge Helene N. White, who was in the majority, was initially nominated by President Bill Clinton and was later renominated by President George W. Bush as part of a compromise involving several nominations.)
Many judges hate it when news reports note this sort of thing, saying it undermines public trust in the courts by painting them as political actors rather than how they like to see themselves — as disinterested guardians of neutral legal principles.
But there is a lot of evidence that the party of the president who appointed a judge is a significant guide to how that judge will vote on politically charged issues like affirmative action.
Liptak then turns to discussion of the Epstein/Landes/Posner book:
“Justices appointed by Republican presidents vote more conservatively on average than justices appointed by Democratic ones, with the difference being most pronounced in civil rights cases,” the three authors write.
That correlation has become more pronounced since the retirements of Justices John Paul Stevens and David H. Souter, who were appointed by Republican presidents but were members of the court’s liberal wing. These days, for the first time in many decades, all of the court’s more liberal members were appointed by Democrats and all of its more conservative ones by Republicans.
“Like Supreme Court justices,” the three authors add, “court of appeals judges appointed by Republican presidents are more likely, other things being equal, to vote for conservative than for liberal outcomes.”
But many judges continue to deny the political aspects of their work. See, e.g., Justice Elena Kagan (“There is not a single member of this Court, at a single time, who has made a decision, who has cast a vote, based on do I like this president, do I not like this president….”); Justice Antonin Scalia (claiming that he and his colleagues don’t care about who the president is and what party he’s from; rather, “we vote the way we do because we are who we are, and we were selected [for the Court] because of who we are”).
Of course judges are, at least in part, political actors (and sometimes brilliant ones; see, e.g., Chief Justice Roberts in the Obamacare case). As Professor Epstein told the Times, “I think voters — not to mention senators, presidents and the judges themselves — understand that there’s a difference between judges appointed by Republican and Democratic presidents. If they didn’t, we wouldn’t have confirmation battles.”
But aren’t we better off pretending that judges are not political? Next time you visit One First Street, please pay no attention to those nine politicians behind the curtain.
‘Politicians in Robes’? Not Exactly, But . . . [New York Times]