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Judge X is a Democrat, says the reporter. But Judge Y is a Republican, notes the TV commentator. The media were most diligent in mentioning the previous party affiliations of the various judges sitting on the multitudinous lawsuits filed concerning the presidential election. Rare was the story that mentioned what law school a judge had attended, or the length of his judicial experience, or her reputation among lawyers and academics. But almost without exception, the audience was informed that the judge had been appointed by a Democrat or a Republican, or by President Clinton, or by a Bush (either Senior or Jeb). Since the media are always looking for shorthand terms to describe complicated ideas, labeling by party is almost unavoidable. But of all the efforts to simplify the complex, none is more mischievous than the willingness to reduce judges to their party registration or the political affiliations of their appointers. The process of reaching judicial decisions is difficult to describe. I spent 15 years doing it and writing about it and still found it more mysterious than explainable. But the most important aspect of the process is that it is reactive. Contrary to some critics, judges don’t wake up in the morning and set an agenda for the day’s judicial activism while shaving. Judges respond to the questions that are presented to them. Even when they have preconceived notions about what kind of environmental laws should be passed or who should win an election, they can react only to the specific facts in the cases before them. Indeed, if a judge chooses to be outspoken about his preconceived notions, it may be grounds for recusal when a relevant case comes up. That is what happened to the first judge who was asked to rule on the Palm Beach County disputes: When it came to light that he had expressed strong views on the Clinton White House, he lost his opportunity to apply those views to the current brouhaha. IT’S NOT ABOUT POLITICS The truth is that most cases that make it to court don’t lend themselves to political decision making. Appellate judges, especially, spend a lot of time addressing the minutiae of statutory interpretation, into which the sweep of party platforms offers little or no insight. Ideological identification can be a bit more accurate in predicting a judge’s decisions, but even that is not fixed in stone nor reducible to a one-word explanation. Justice Felix Frankfurter was expected to be a New Deal-supporting liberal on the Supreme Court, but disappointed his friends and his critics in that regard. Justice David Souter was expected to join the conservative wing of the Court; that’s why he was pushed so strongly by the conservatives. To this day, he confounds them. And, of course, President Eisenhower’s oft repeated identification of Justices Earl Warren and William Brennan Jr. as his “two biggest mistakes” reminds presidents that trying to predict the future decisions of a new justice is an exercise fraught with uncertainty. As indicators of future behavior, party labels are even more confusing. The deciding vote that denied Adlai Stevenson III a recount in his unsuccessful quest to become governor of Illinois was cast by a judge who had been a prominent Democratic officeholder before being elected to the state supreme court. Highly political and vigorously gerrymandered reapportionments have been upheld by judges of the party disfavored by the new map. When judges are appointed for life or when political forces have little to do with their retention, they don’t factor party impact into their decision making. And even judges who depend on the political process to get elected find that issues look a lot different once they’re wearing that black robe. Some critics wailed how improper it is that the legal system was dragged into the political process — all those lawyers, all those lawsuits! Yet often they’re the same critics who suggest, none too subtly, that politics always influences judicial outcomes. With one breath, they contend that the Florida Supreme Court should not have allowed the hand recounts to continue against the wishes of the political branches of the state government, and with the next breath they suggest that the judiciary is a political branch by noting that the Florida court is made up mostly of Democrats. The critics are right if the only credential judges bring to this dispute is a party label; then litigation is not likely to be helpful. If, however, the courts are allowed to play their allocated role in our tripartite system — that of applying neutral principles to resolve disputes — then even using litigation to determine the winner of an election is the way to go. It certainly is better than allowing disputes to be decided on the basis of which side can round up more and noisier demonstrators. It beats letting the orator with the catchiest alliterations determine who received the most votes. Those who think that judges should preserve their creditability by staying out of what is today our country’s most pressing dispute argue that how we count votes is the quintessential political question. Courts, they say, are supposed to avoid such questions lest they too get caught in the briar patch of partisan wrangling. But as attractive as such avoidance may look, the political-question dodge seldom works. Courts are usually called upon to resolve political disputes exactly when the political branches are deadlocked, immobilized, or even less creditable. That’s why even those with the narrowest view of the kinds of questions that courts should resolve acknowledge that Brown v. Board of Education and maybe Baker v. Carr (the landmark reapportionment case) had to be decided by the U.S. Supreme Court. It’s pretty hard to argue that the Florida state legislature could have better brought closure by stepping in. (After all, legislators are not previously and often tangentially connected to a political party; they are the point of the parties’ existence.) And if the very cumbersome constitutional process had been used to throw this election to the new Congress, we conjure up unattractive shades of the 1876 crisis. Lawyers have never had much cachet, and judges are losing much of theirs, as they are thrust into more and more hot-button issues. But litigation beats riots, and judicial opinions beat police decrees. For the courts to have effectively refereed our presidential fisticuffs, all the judges involved needed to have their creditability enhanced, not diminished by equating law with politics. So long as the American people feel free to reach virtual ties in choosing our national leadership, we need to preserve the trustworthiness of the only neutral tie-breaker available. Note that I have made no reference to the party labels, or the appointers, of the nine justices who heard arguments last week. Abner J. Mikva, who teaches at the University of Chicago Law School, is a retired judge of the U.S. Court of Appeals for the D.C. Circuit, former White House counsel for President Clinton, and a former member of the U.S. House of Representatives. He served as chief judge of the D.C. Circuit from 1991 to 1994.

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