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Monday, July 31, 2006

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

"Could Increased Openness in Judges' Decision-Making Depoliticize Confirmations?" is the title to Howard Bashman's column this Monday in Law.com. (Today's column follows on his interesting column last week titled "What should judges do if, while visiting the legal blogosphere, they encounter discussions about how pending cases ought to be decided?")

Actually, I had never before thought of the judicial branch as the most transparent, but Howard makes some good points. Further, he is writing about the appellate judge confirmation process at the federal level, but much of what he says also could apply to retention votes at the state judicial level. Some quotes:

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. * * *

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. * * *

[J]udges' 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.

Re "[J]udges 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", this may be precisely why appellate judges often describe their work as "technical" and are surprised that others may look for political motivations in their opinions.

Posted by Marcia Oddi on July 31, 2006 07:35 AM
Posted to Courts in general