The Rule of Law When Political Issues Are Present

Justices of the US Supreme Court pose for their official photo at the Supreme Court in Washington, DC on November 30, 2018. – Seated from left: Associate Justices Stephen Breyer, Clarence Thomas, Chief Justice John Roberts, Ruth Bader Ginsburg and Samuel Alito. Standing from left: Associate Justices Neil Gorsuch, Sonia Sotomayor, Elena Kagan and Brett Kavanaugh.

Does it matter whether a judge is liberal or conservative?  Should it matter?

I answer in reverse order. Should it matter? No, it should not matter. Does it matter? Yes, absolutely it matters. Why?

In every appellate court in the land the judges or justices are generally known as to their political leanings, at least generally either as liberal or conservative. This should not matter and would not matter if we could rely on courts to neutrally apply the law and the Constitution as each is written. We can’t rely on that because they don’t do that.

Not all judges are guilty of political bias, but a vast majority of them cannot seem to neutrally render any decision solely on the law and legal principles when the case has political issues, even if only in the background. Many if not most cases do have lurking political issues to some degree.

Lawyers like to be able to predict how a court will rule in a case. A lawyer can best serve his or her client by giving them an honest and knowledgeable assessment of how the case is likely to turn out. If the odds are overwhelming in one direction it would be nice to know. If it’s against you then trying to work out a settlement is wise. If the odds are with you it’s easier to justify the expense of going to trial or, the you lost at trial, whether to appeal.

So how does a good lawyer make that determination? What sources does he or she consult?  Is it the law books one should read, and is it necessary to know the exact mix of liberal or conservative leanings of the judges or justices that will hear the case at trial or on appeal.

You always have to know the law so that you can accurately and honestly argue the law to the court in hopes the court will follow the law and put politics aside. Putting aside the politics, if there is even a hint of certain political issues that fall on either side of liberal conservative is something you do at your peril. Too many judges allow their politics to overrule the law.

Were it otherwise, we would not know which judge is liberal and which is conservative. We would not care because there would be no need to care. Knowing the law would be the main goal. Knowing how to persuasively argue the law to the judge would be the mark of a great lawyer. That’s still needed, but it’s not enough in a case with political issues.

Every serious lawyer wants to know the politics of the case and the judges because this knowledge is as important, sometime more important, than knowledge of the law. Knowing the law is futile if the judges are not going to follow it.

That’s why in every court in the land those who practice in that court will make certain to know which judges are politically liberal and which are conservative. If it’s going to affect the outcome you better know it.

This brings to mind two recent statements by U. S. Supreme Court Justices on the need for political neutrality by judges and justices on all the courts in America. The first is Chief Justice John Roberts, but the Chief Justice is not concerned about the need for judicial neutrality, he thinks it already exists. Replying to President Trumps reference to  an “Obama Judge,” Roberts said:

“We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”

Huh? I don’t know what planet Roberts think he’s living on. On planet earth his statement is patently ridiculous. Of course, we have Obama Judges, Trump Judges, Clinton Judges, Reagan Judges, on and on. Does it matter whether a Judge is liberal or conservative? Yes, of course it matters. That is precisely why we keep track of those statistics. If it didn’t matter who would bother?

A wiser comment comes from Justice Clarence Thomas in his dissent from the majority’s refusal to accept the case of Rebekah Gee, Secretary, Louisiana Department of Health and Hospitals v. Planned Parenthood of Gulf Coast, et al. The case presents an issue that is split in the circuits over the right of a private action by Medicaid patients to challenge a state’s action in replacing a provider or insufficiently compensating a Medicaid health provider. Justice Thomas dissenting the court’s refusal to hear the case, given the split in the circuits. As a general rule, the Supreme Court accepts cases such as this one in order to clear up the split in the Federal Circuit Courts of Appeal.

Thomas said:

Some tenuous connection to a politically fraught issue does not justify abdicating our judicial duty. If anything, neutrally applying the law is all the more important when political issues are in the background. The Framers gave us lifetime tenure to promote “that independent spirit in the judges which must be essential to the faithful performance” of the courts’ role as “bulwarks of a limited Constitution,” unaffected by fleeting “mischiefs.” [bold emphasis added be me]

Politically motivated judges allow themselves to be affected by the “fleeting mischiefs” of politics. For that they are called “Hacks in Black.” Judges that respect and follow the rule of law without regard to their personal political beliefs are called “Good Judges.” 

Good Judges make the practice of law rewarding. Hacks in Black make it miserable.

UPDATE: Judicial misconduct is not the only thing that plagues litigants and crime victims. Prosecutorial misconduct can also be a problem, sometimes a huge problem. Here is a glaring example. It’s different though. It’s easier to get it rectified because you can always take it to a judge in hopes of persuading him or her or her to stop it or rectify it. You generally have nowhere to go if you’re the victim of judicial politicking. Judicial incompetence, not knowing the law, is less bad because you can appeal on those grounds. A judge’s “fleeting mischief” has to be very obvious and very bad to get an appellate court to give you relief. If your complaint is based on the political mischief of the judge, you still are better off arguing he or she misstated the law. Too often the politics of the appellate judges will differ little from that of the judge you think screwed you for failing the political test.

UPDATE II: Do conservative and liberal judges indulge their politics with similar frequency? At the risk of being a political hack myself, I say you are more likely to fail the judges political test if you are a conservative. That’s because of the difference between conservatism and liberalism. Liberals believe they have a lock on right and wrong. Conservatives want to do right but are not nearly as confident of their own ability to decree what is right and are more willing to apply the law as is without imposing their own personal beliefs. Being governed by the law and not by some judge’s political whim is better because the law can be found. Political whims are in the wind. It’s difficult to say when or where or how they will be applied.

 

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