Could Increased Openness in Judges' Decision-Making Depoliticize Confirmations?

Howard J. Bashman

07-31-2006

Related: Bashman Archive

The judicial branch, at least at the appellate level, has the potential to be the most open to public scrutiny of the three branches of the federal government. Not only do appellate judges have a practice of explaining in writing the reasons for their rulings in opinions that are widely available and open to public scrutiny, but increasingly the legal briefs that the parties file on appeal and the audio or written transcript of appellate oral arguments are also freely available online.

With the exception of private communications between appellate court judges as they work to decide pending cases, the rest of the federal appellate court process is increasingly conducted in a manner that is wide open to the public.

By contrast, no one reasonably expects President Bush to conduct his duties as chief executive in a manner that is open to public scrutiny at all times, nor is the president required to give public explanations for his decisions in heading the executive branch of government. And while the U.S. House and Senate do conduct most of their hearings and floor proceedings before the cameras, there is no public record of all the information that may influence legislators in how to cast their votes, nor are legislators obliged to explain why they are voting a certain way on any given matter.

As more federal appellate courts provide easy public access to appellate briefs, oral argument audio and their own rulings, it will be interesting to see whether the judicial branch's openness will have a depoliticizing impact on the judicial confirmation process. In the case of the most controversial federal appellate court nominees, contentious battles continue to be fought between groups that would prefer to have judges arrive at a particular set of outcomes in hot-button cases.

Although, in retrospect, these battles often appear unjustified and misguided, they continue to rage on,  as evidenced by the process leading up to the two most recent U.S. Supreme Court confirmations.

At the heart of the disconnect between the confirmation process and the adjudication process followed by the federal appeals courts is the fact that the confirmation process is, of necessity, a political endeavor, while the process of deciding cases as a federal appellate judge is not -- or, at least, should not be -- a political endeavor. Groups that favor certain outcomes in the political realm understandably support or oppose judicial nominees based on the outcomes those nominees are perceived as being likely to produce.

But judges' roles are not to implement their  particular personal or political preferences under the guise of deciding cases. Rather, judges decide cases based on a combination of their approach to the law, existing precedent, the facts and procedural posture of the pending case and other applicable statutory or constitutional provisions.

As the process for deciding cases at the appellate level becomes more transparent -- due, in part, to the availability of parties' appellate briefs and oral argument audio or transcript, along with the appellate court's opinion explaining the basis for its rulings -- perhaps the public will better appreciate that, in the majority of cases, the process of deciding cases on appeal does not consist of judges imposing their personal preferences on society. Then, perhaps, the battle over confirming judges will be less about the ultimate results of controversial disputes and more about nominees' methods of deciding legal issues.

Instead of asking judicial nominees at their confirmation hearings to reveal personal views on abortion, the death penalty, racial preferences and so forth, perhaps the confirmation process could focus on more important questions, such as how a nominee would go about deciding the meaning of an unclear constitutional provision or a piece of legislation, the level of constitutional specificity required to override the majority's expression of its wishes through the legislative process, and the nominee's plans for addressing a crushing appellate caseload.

One can only hope that this sort of discussion, based on a realistic understanding of the judicial decision-making process, would provide more insight than today's approach, which focuses obsessively on a nominee's personal predilections instead of the nominee's likely jurisprudential approach. In any event, it is difficult to believe that such a new approach could provide any less insight than today's approach.

There are different methods of judicial decision-making, which often lead appellate court judges to reach differing results. If a U.S. senator believes that a judicial nominee's method of ascertaining the meaning of the U.S. Constitution would produce results with which the senator or his constituents would disagree, then that senator would certainly be free to vote against the nominee. Indeed, such a vote would be far more principled than a vote based on a nominee's personal views on abortion, the death penalty or affirmative action.

Are there instances where an appellate judge's personal preferences may affect an appeal's outcome? Certainly there are, although one hopes that such instances occur most infrequently, and only where all of the other, more appropriate, bases for resolving a case have been pursued and, nevertheless, the result remains in equipoise.

The judiciary deserves to be applauded for striving to become the governmental branch that is the most open to public scrutiny. Perhaps someday soon this effort will allow the public to realize that federal judges are not partisans in the battles over the most contentious social and political issues, and the process of selecting those who seek to join the ranks of the federal judiciary will improve accordingly.

Howard J. Bashman operates his own appellate litigation boutique in Willow Grove, Pa., a suburb of Philadelphia. He can be reached via e-mail at hjb@hjbashman.com. You can access his appellate Web log at http://howappealing.law.com/.