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According to statute, here’s all that people need to say before they can put on judicial robes: “I do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as judge under the Constitution and laws of the United States. So help me God.” But according to the Senate’s kabuki rituals, there’s an additional requirement that they recite, more or less: “My duty as a judge and my inclination as a person and as a lawyer of integrity would be to follow the orders of the higher court.” Seems reasonable. After all, what’s the problem with following precedent � especially from the Supreme Court? That’s what courts do. It seems so reasonable, in fact, that the Senate last week was melting down into a filibuster over an allegedly conservative nominee whom Senate Democrats apparently fear might not follow precedent. That nominee (to the U.S. Court of Appeals for the D.C. Circuit) is Miguel Estrada, whose testimony during his confirmation hearings is the source for the second quote. Even after Estrada said that he “absolutely” would follow Supreme Court precedent, the Democrats kept prying beneath the surface. Sen. Dianne Feinstein asked him about abortion and Roe v. Wade. Sen. John Edwards quizzed him on the right to counsel and Gideon v. Wainwright. Sen. Patrick Leahy homed in on gay rights and Romer v. Evans. Let’s hope the Senate Democrats are right about the absolute importance of following Supreme Court precedent. But I doubt they are. Because there are some situations where no reasonable person wants lower courts to blindly do what the Supreme Court says. TO FOLLOW OR NOT TO FOLLOW Think of it this way: In 1954, the Supreme Court decided Brown v. Board of Education, declaring racial segregation in primary schools to be unconstitutional. Now say that it’s 1955. You’re a federal judge. A case comes up in which you have to decide whether racial segregation is constitutional not in schools but in public transportation. You know that racial segregation and discrimination is an area of law very much in flux. The justices were about as hard on segregation as they could be in Brown. You have a pretty strong hunch that, if you hold the bus segregation unconstitutional, the Supreme Court will uphold you. But then you look at Brown again. You note that the opinion’s reasoning seems pretty closely pegged to education. You look at footnote No. 11, which first cites to “K.B. Clark, Effect of Prejudice and Discrimination on Personality Development (Mid-century White House Conference on Children and Youth, 1950)” � a study targeted specifically at the effects of segregation on children (though some other citations in the footnote seem to have a broader scope). And then you remember Plessy v. Ferguson, the 1896 case that the Court in Brown referred to critically, but didn’t explicitly overrule. Plessy, of course, deals with an issue closer on its facts to your case: It addresses public transportation, and it upholds segregation. What do you do? If you follow the never-deviate-from-precedent oath that the Senate today insists on, you distinguish Brown as an education case, you apply Plessy, you declare that blacks have no constitutional right to choose where to sit on a bus, and, if you’re the progressive sort, you hope that the Supreme Court will sort out the mess. Congratulations, you’ve been good to your word. So help you God, indeed. That example, by the way, comes from the confirmation hearing of another Bush nominee, John Rogers, whom the Senate confirmed to the 6th Circuit in November. At his hearing, the senators asked Rogers to explain a law review article he wrote in 1995, blandly titled “Lower Court Application of the ‘Overruling Law’ of Higher Courts.” In it, Rogers argued that judges shouldn’t simply apply the precedent of an area of law when deciding a case, but should also apply what he calls the “overruling law,” meaning the subtle cues from the higher court about how far that court would be willing to expand the substantive precedent. Roughly speaking, he asserted that judges sometimes should decide cases not by looking backward at substantive precedent, but by looking forward to predict what the reviewing court (sometimes the Supreme Court) will do. The Democrats at his hearing didn’t like that. In his defense, Rogers sketched out a version of the Brown scenario I just described. But he put forward that scenario to demonstrate how limited his theory would be. And, in any case, he said, “I strongly believe that it is the duty, actually the legal duty, of a court of appeals judge to follow the holdings and decisions of the Supreme Court of the United States.” The law review article, he said, was just so much what-iffing. It was published in a journal called Legal Theory. It was “esoteric,” he said, and “abstract.” THE TOUGH QUESTIONS But it’s not. How judges reach decisions when they can’t play follow the leader is critical because so often there is no clearly binding precedent. Look at three hot issues now either on, or on their way to, the Supreme Court docket. One is the University of Michigan cases, Gratz v. Bollinger and Grutter v. Bollinger. Next is the Texas sodomy case, Lawrence v. Texas. And last is Newdow v. U.S. Congress, where the 9th Circuit held that states cannot require students to recite that we are one nation “under God” in the Pledge of Allegiance. The Michigan cases are forcing the Court to reconsider its fragmented Regents of the University of California v. Bakke decision, which in 1978 upheld one form of affirmative action for higher education. In the sodomy case, the Court will re-examine its somewhat schizophrenic gay rights jurisprudence, especially Bowers v. Hardwick, upholding a state sodomy law in 1986, and Romer v. Evans, striking down a state law that prohibited a city from granting anti-discrimination protection to gays and lesbians in 1996. And the flag-pledging case touches on the convoluted jurisprudence of the unconstitutional establishment of religion by the government. (Even Justice Antonin Scalia, no great friend of the godless, said in a speech earlier this year that there is “some plausible support” in Supreme Court precedent for the 9th Circuit’s opinion.) It may be true, as Republican Sen. Orrin Hatch said during Estrada’s hearing, that 97 percent of federal appellate cases with panels composed of judges appointed by both Republicans and Democrats are decided unanimously. But it’s that remaining 3 percent that people tend to care most about. In those contentious areas � and other areas where there is simply no guiding precedent � judges are left more to their own devices. Maybe they’ll look for analogies in other areas of law. Maybe they’ll look at what other federal circuits, or state courts, or even other nations have done. Maybe, as Rogers argued, they’ll try to predict what the courts above them will do. But it’s in all these situations that there’s more room for the judges’ own ideology to seep into the cracks, consciously or not. Which analogies are relevant? Which other circuit’s solution is somehow “better”? Which “cues” from higher judges are trustworthy? None of these are mere math problems with objectively correct answers. So the real problem is that judicial nominees � of any ideological stripe � can promise to follow precedent with all the integrity they possess. But the Democrats should know that it won’t do much good. After all, at the same time that they’re pushing nominees to pledge their faith to precedent, they’re also charging that nominees’ ideologies might make them unfit for the bench. If the Dems are so convinced of the power of the latter, then why bother with the former? If liberals really wanted to fetishize precedent, the time to do it was 1969. That’s when Earl Warren retired and Warren Burger became chief justice. Back then there were lots of good liberal decisions fresh from the printer, and a new risk that the conservative wing of the Supreme Court would prove ascendent. Back then, it might have made sense to try to lock in the Warren Court rulings by forcing lower court judges to swear to them. Thirty years later, some of those old liberal pillars are still standing. But overall there has been a new wave of conservative Supreme Court jurisprudence written into the books, with more likely to come. Democrats might want to think for a minute about why, exactly, they’re so keen to have lower court judges follow it. Evan P. Schultz is associate opinion editor at Legal Times. His column, “Controversies & Cases,” appears every other week. He can be reached at [email protected]

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