Seeking for Righteousness

The Personal Blog of Kaimi Wenger

The Nation has a new story critiquing President Bush’s judicial nominees. Cited is one Nan Aron, president of the Alliance for Justice, who states that “The extreme right already controls seven of the thirteen circuit appeals courts. The DC Circuit is the crown jewel of the federal system, and it is now evenly balanced.”

Well, that certainly sounds like a serious charge. If the extreme right actually controls seven circuits, one might have cause to be alarmed.

The Mystery

The obvious question, of course, is which seven? My co-clerk and I pondered this for a few minutes. The Fourth and Fifth are obvious candidates, and probably the Seventh, since many writers tend erroneously to believe that Posner = Easterbrook (silly rabbit, Posner is the McCain of the judiciary). But even if the seventh is included, who are the other four slaves-to-the-right? The Eighth? (Does that circuit even issue opinions?)

The Answer

A quick call to AFJ led me to a friendly staffer, who glanced over some papers for a bit, and then confidently informed me that the seven circuits controlled by the extreme right are the First, Fourth, Fifth, Seventh, Eighth, Eleventh, and the Federal Circuit (d’oh, I had forgot about the Fed. Cir.). Which could be plausible enough; I had already tagged 4, 5 and 7, and don’t have an in depth picture of the other four, which are relatively low-profile.

The Methodology (so to speak)

But then I had to go and ask the question, “How are these determinations made?” At which point the very polite and helpful AFJ staffer explained — those seven are the circuits where judges appointed by Republican presidents outnumber judges appointed by Democrats. Yep, that’s the secret formula: More R than D = control by the extreme right.

The test is made easy by AFJ’s own web page listing judges by affiliation (which is kind of neat, by the way, it’s right here, just click “Submit” to get the list). You can do the math yourself: The First Circuit has four Republican appointees and only two Democrat appointees, so it’s “controlled by the extreme right.” The Second, meanwhile, is 4-8 in favor of Democrats, and the Third is balanced at 6-6, so both of them are safe.

In case any reader is thinking “Wow, what a great way to categorize,” let me state at this point that THAT METHODOLOGY IS INSANE! It’s deceptive, it’s hyperbolic, and it sure looks like the product of politically motivated minds for whom politics overwhelms all semblance of objectivity.

Let’s go down a few major objections:

1. The political party of the appointing president is at best a somewhat-above-average indicator of how a judge will rule. Other factors, such as the composition of a panel, are more determinative. See, e.g., Revesz, 83 Va. L. Rev. 1717 (discussion of political ideology and political party of appointing President). Well-known exceptions abound, and exceptions seem especially prominent among Republican appointees. Blackmun, anyone? Warren? Stevens? Souter? That ninth-circuit fellow who invalidated the pledge? All “controlled by the extreme right.”

2. Take a good look at the master list on the AFJ site, used to compile these statistics. Do any names seem to be missing? Jon O. Newman? One W. Feinberg? A judge named Kearse? Winter? McLaughlin? Leval? That’s right, those are senior judges and the AFJ doesn’t think they need to be included in the tally of right-wing influence. They happen to sit on panels and author a whole lot of opinions. Would the numbers of senior judges tip the scales the other way? Maybe (I don’t want to do the math). In any case, any numbers which omit them have to be considered suspect.

3. The best part of all: Per AFJ “methodology,” no matter who Bush appoints to the D.C. Circuit, it will become “controlled by the extreme right.” That’s because the only indicator of right control is the appointing president, and Bush is (you got it) a Republican. So he could appoint Bill Clinton. Laurence Tribe. Charles Ogletree. Catherine McKinnon. Hell, he could re-nominate Ronnie White, and it would go down as a win for the extreme right, per AFJ methodology. Incredible.

Bonus Critique of Nation article

Okay, this critique is on a separate topic (same article) which is not nearly as bad as the “seven circuits controlled,” but it still bugged me. The Nation article criticizes Ginsberg and Breyer for not being “visionary liberals in the tradition of William Brennan, William Douglas, Thurgood Marshall or Louis Brandeis.” Hmm, who doesn’t belong on that list? Well, if they’re being evaluated for their contribution on the bench (as the article suggests), it’s quite odd to place Thurgood Marshall with the others. Like some other Supreme Court justices (see Cardozo), Marshall’s reputation comes from what he did prior to his appointment, not from relatively undistinguished service on the Supreme Court.

September 24, 2002 - Posted by | Uncategorized

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