A New York Times Study of the Effect of Partisan Selection of Immigration Judges Illustrates Why Vetting Works, and Why Ideology Matters

By EDWARD LAZARUS


Thursday, Aug. 28, 2008

It has now been more than a year since the story broke that the Bush Justice Department was skirting the civil service rules that require that immigration judges be appointed on an apolitical basis, and was, instead, stacking the immigration courts with Republican partisans. The New York Times has now done a follow-up study attempting to discern whether the partisan selection process had a substantive impact. The answer is yes.

According to the Times, the Bush appointees selected for their politics are, as a whole, significantly more likely to deny asylum applications and order deportations than the immigration judges appointed without reference to their political ties.

Two lessons can be taken from this story. First, vetting works. And, second, the ideological outlook of judges matters.

Though Some Justices and Judges Famously Have Defied Expectations, Most Do Not – Especially If They Have Been Specifically Vetted for Ideology

On the subject of vetting, we like to comfort ourselves that people appointed to the bench have a tendency to surprise their political patrons and often do not, as judges, adopt the same ideological cast that gotten them named to the bench in the first place.

Certainly, it is not hard to identify prominent examples of this phenomenon. President Franklin Roosevelt named the liberal legal scholar Felix Frankfurter to the Supreme Court, only to see Frankfurter resist many of the liberal innovations of the Warren era. President Dwight Eisenhower was bitterly disappointed by the decidedly liberal careers of his two appointees, Chief Justice Earl Warren and Justice William Brennan. President Richard Nixon named Harry Blackmun to the high court because of his rock-solid, law-and-order conservative reputation, yet Blackmun became an outspoken liberal. And, more recently, Justice David Souter has turned out to be much more liberal than his patron, President George H.W. Bush, wanted and expected.

But there is less to all this than meets the eye. Neither Warren nor Brennan, for example, were chosen based on ideology – and had they been vetted for adherence to core “conservative” values, neither would have been chosen. Warren was a former California governor with wide bipartisan appeal. Brennan was a Democrat chosen based on demographics, not politics.

Granted, Souter was chosen in the hope that he would turn out to be an ideological conservative. But the fact that he turned out to be much more liberal than some of his backers anticipated mostly shows that it is hard to vet a “stealth” candidate: Souter, by his backers’ design, had almost no track record to examine. Once Souter revealed his core jurisprudential beliefs during his confirmation hearings, including his devotion to precedent, it was clear to those in the know that he would not join the basic enterprise of the Court’s right wing to reverse a host of Warren era landmarks in areas like abortion rights, affirmative action, and school prayer. But at that point, the President could hardly have reversed his choice.

The Souter “mistake” makes it far less likely that a future President will pick a Supreme Court nominee who lacks an ideological track record. This prediction is also bolstered by the fact that, more generally, over the last several decades, ideology has come to play a much more central role in judicial selection for vacancies at every level of the federal court system, including but very much not limited to the Supreme Court. (Immigration judges were once seen as holding relatively inconsequential positions; not so after 9/11).

In short, vetting – especially political vetting -- has only increased in importance. And because the divide in our legal culture has been so wide and so deep, for so long, it has become ever easier to predict judicial behavior based on the political beliefs of the judge or Justice.

In Our Deeply Divided Political Culture, Ideology Matters, Especially Now

The basic dividing lines have been etched in stone for decades – and the questions Presidents and Senators want answered when it comes to their nominees are well-established: Where has the nominee stood on the right to privacy, or on the jurisprudential issue of “substantive due process” that undergirds that right? What about on hot-button issues like school prayer, affirmative action, states’ rights, Miranda rights, or executive power? Does the person have a track record on issues related to access to the courts, such as standing doctrines or the certification of class actions? Is the person affiliated with an ideologically-driven legal organization such as the Federalist Society or the American Constitution Society?

The issue is made a bit more complex by the fact that neither legal conservatives nor liberals form monolithic blocks. Some conservatives have a libertarian bent not shared by others, who tend more toward being “morals” conservatives. Some, like Justice Antonin Scalia, follow the jurisprudence of original intent (interpreting the Constitution according to the views of the Framers). Others, like Chief Justice John Roberts, usually use other tools to reach similar results. For their part, some liberals are more sympathetic to business concerns than others, and disagreements among liberals over First Amendment issues and some criminal law issues are common.

But, overall, it is not terribly hard to figure out where someone stands on the spectrum of jurisprudential ideology, as well as how devoted that person is to his or her beliefs. Although life-tenured judges have been known to evolve in their views over time, far more often than not, the instincts and inclinations of prospective judges can be discerned in advance and will not change all that much post-appointment.

This is especially true, I suspect, below the level of the Supreme Court. At the Supreme Court level, the enormous gravity of the cases (and perhaps something about the institution itself) sometimes has a significant effect on individual justices. But, offhand, I cannot think of any current federal court of appeals judges who have truly “surprised” the Administrations that appointed them (though no doubt there are a few).

Over time, this predictability can have a profound effect on the entire legal system. The outcomes in a large number of “hard” cases – the cases where the “right” disposition is not readily apparent based on long-established law – will depend on the ideological or attitudinal predispositions of the judges involved.

Practitioners are keenly award of this. The first question asked by many lawyers taking on a new case is “What judge has it been assigned to?” In recognition of how important judge selection can be, some states even allow litigants to strike the first judge assigned to a case and take a chance on doing better with a second pick.

The federal system does not provide for such challenges. Rather, in federal court, you must take the judge you get – and the judge you get (or, at least, what type of judge you are most likely to get over the long run) depends, in this age of vetting, almost exclusively on one thing – presidential elections. Another is upon us now.


Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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