WHY JUDGES' PERSONAL PREFERENCES PLAY A ROLE IN THEIR DECISIONMAKING, AND HOW THE APPELLATE SYSTEM CONTROLS THAT ROLE

Lately, the Bush Administration's judicial nominations have sparked unusual controversy. With Republicans now controlling Congress, the controversy is sure to increase, with the Administration emboldened to attempt to push through more conservative nominees.

When federal judicial appointments come to the public's attention, so too does the murky area of judicial decisionmaking - how judges decide the cases and controversies that appear before them. Politicians and pundits become consumed with examining the political leanings of federal judiciary nominees.

The essential question is this: How much - in the long run - do each nominee's policy preferences really matter?

The Inevitability that a Judge's Policy Preferences Will Play Some Role

The concept of stare decisis - a judge's obligation to follow precedent - is at the heart of the case law system. Judges look to prior decisions, and the legal analysis contained therein, to guide current decisions. In this way, stare decisis provides an institutional constraint - one that prevents judges from simply enacting their own policy preferences into law, and that keeps the law itself stable and consistent.

The problem, however, is that some cases fall between the cracks; they are not clearly governed by existing precedent. When a case winds its way up to the Supreme Court - or even to one of the U.S. Courts of Appeals, or a State Supreme Court - it is usually because it falls into that very category: It is a "hard case."

In hard cases, where precedent does not counsel any obvious result, the judge must go beyond prior case law, and look to other related (but not binding) precedent, and ultimately to policy considerations.

That means that no judge can ever wholly avoid giving his or her personal opinion on what is politically preferable, or what is morally acceptable or required. Indeed, in appellate courts, judges are constantly called upon to do so.

Even in easier cases, personal preferences, about policy or morality, can intervene to influence even a conscientious judge's result. The interpretation and application of precedent, too, inextricably involve personal preferences as to morality and policy. A judge is a human being, not a law-applying machine, and that is a virtue, not a flaw.

How the Appellate System Prevents Judges From Imposing Personal Preferences

Nevertheless, when judges are nominated, the idea that they might impose their preferences on the law is seen as anathema - a violation of the judge's proper role, and an infringement on the role of the elected legislature. Many commentators brand preference-based decision-making as "judicial activism" that is unacceptable and unconstitutional.

Especially when it comes to appellate courts - including the Supreme Court - the criticism is unfair, for it is the rare judge that looks only to his or her own preferences, not the law. On the nine-Justice Supreme Court, or even a three-judge federal appellate panel, a jurist who ignores precedent, or his colleagues' views, in favor of imposing his or her personal preferences will have a difficult time gathering a majority.

Unless and until such a judge pays the law heed, he or she may end up repeatedly dissenting. As a result, even a hypothetical cynical, willful judge focusing only on his own preferences will at least pay lip service to the law.

No one can deny Justice Brennan's liberalism, or Justice Scalia's conservatism. But it is notable that such political preferences are especially evident in their dissents and their opinions written on behalf of large majorities. In contrast, when they are tasked with garnering a stable majority, their arguments are necessarily less extreme and more accommodating of their colleagues' preferences.

In Pennsylvania v. Muniz, Brennan endorsed the view that a videotape of a drunk driving suspect was admissible evidence despite the fact that the suspect had not been read his Miranda warnings - even though Brennan himself disagreed with this particular result. The case provides an example of Brennan's ability to forge a compromise legal analysis to support an analysis of the law that more closely tracked his preferences. Brennan later wrote to Justice Marshall, who dissented in that case, that he had "made the strategic judgment to concede the [] exception but to use my control over the opinion to define the exception as narrowly as possible."

The panel system thus effectively counteracts political influence in the administration of justice. No one judge has the sheer power to exert his or her own will. A Supreme Court Justice must persuade no fewer than four colleagues. At the appellate level, even a rogue three-judge panel must face potential en banc consideration by a larger panel with the power to overrule it - as well as, ultimately, potential U.S. Supreme Court review.

Rogue Judges Who Try Simply to Serve Their Own Preferences Do Not Succeed

Finally, a rogue judge who ignores the law to impose personal moral and policy preferences usually will not go far. The President and the Senate must ultimately compromise on judicial appointments. If not, they tend to deadlock or stalemate, as we have seen in the past.

The process favors moderate nominees over extremists who seek to change, rather than follow, the law. If a President chooses an extremist, he is in for a fight, and loses a large amount of political capital. Think of the controversies over Justice Clarence Thomas's, and Robert Bork's nominations, versus the relative quiet that attended those of the far more moderate Justices Stephen Breyer, Ruth Bader Ginsburg, and Anthony Kennedy.

Compromise may not happen in a given Administration: Thomas did make it to the Court, though Bork did not. And even now, President Bush may well end up putting quite a few strong conservatives on the federal appellate bench, and even adding a crucial one to the Supreme Court.

But compromise will happen over time: A raft of conservative judges might be tempered by the nomination of liberal judges ten years down the road, and if one side goes too far in choosing extremists, the other side can play tit-for-tat if it so chooses. Because the judges all serve together on appellate panels, or the Supreme Court, their contrary preferences will generally balance each other out.

In the end, political preferences and moral beliefs of nominees are important, and their influence is, at least to some extent, inevitable. But they are probably less important than alarmists on both sides of the aisle suggest.

That's a good thing, because only if we leave alarmism aside, will our nomination process truly improve. If we paid more attention to other important considerations - such as nominees' ability to provide well-reasoned legal analysis or their ethical behavior, regardless of their political leanings - we might find ourselves with justice served all the better.