What The Hyper-Partisan Judicial Confirmation Process Tells Us About The “Least Dangerous Branch”

Chief Justice Roberts Speaks About Partisanship in Judicial Nomination Process

Alexander Hamilton famously argued that the judiciary was the “least dangerous branch.” One might have anticipated this argument, seeing as it comes at the tail end (No. 78 of 85) of other pressing issues addressed in The Federalists Papers. Federalist No. 78 addressed life tenure for federal judges. Periodic elections provide some check on the Legislative and Executive branches. But, periodical elections also give rise to electoral pathologies, which stem from a strong desire to minimize electoral competition and retain power. The judiciary, according to Hamilton, needed to be free from these pathologies because it was the branch of government, as Hamilton puts it, that mediated between the will of the people as expressed by their representatives through statutes or regulations and the will of the people as expressed directly through the Constitution—Hopefully Hamilton understood that the Constitution was also part of a legislative process and was also merely an expression of a group of guys who “represented” the people. 

So, life tenure would not be so bad for judges since they would be free from competitive politics, right? Maybe not. Chief Justice John Roberts recently voiced concern over the hyper-partisan judicial nomination process, which, he believes, taints public perception of judicial activity. Judges, according to Roberts, are not engaged in institutional politics. But the public at large might not understand or know this when what people see is a fight to get one or another parties’ nominee confirmed at any and all costs, even stalling, indefinitely if necessary, the nomination process. 

Chief Justice Roberts raises a valid concern, but he understates the problem.  The judicial confirmation process may influence a certain perception about one or another judge’s political persuasion. But that is only a perception. Judicial opinions in many cases confirm or refute those perceptions. These perceptions are more likely confirmed in split-decisions—when the court splits 5-4 with Republican appointees on one side and Democratic appointees on the other, or vice-versa—and more likely refuted in unanimous decisions. 

Cases involving the scope of constitutional rights and weight of societal goals or norms and where deep-seated and intractable disagreements over both persist among citizens—the breadth of Second Amendment rights in the face of a societal goal to quell gun violence; the scope of an individual’s right to Equal Protection under the law in the face of a small business owner’s deeply-held religious belief against that individual’s sexual activity—complicate the matter. Split decisions not only confirm partisan suspicions in the “losing” side, but fuel public distrust in the judiciary and cynicism toward representative government. Unanimous decisions, though perhaps not refuting partisan suspicions in every instance and for every person, also fuel cynicism toward representative government, as the “losing side” is left asking how nine people in robes can have the final say—barring an improbable supermajority overturning the decision by Article V Amendment—in a matter that affects over 300 million people and over which disagreement persists?

The problem with partisanship in the federal nomination process is not merely that it taints public perception of judicial activity, but that it draws attention to the political nature of the judiciary, itself just another branch of government. The public becomes aware of appointment pathologies in the judiciary, which mirror electoral pathologies. The path from attorney to federal district court judge to federal appellate judge to United States Supreme Court justice requires investing in party elites and championing party platforms and these pathologies may play a permanent role in a judge’s judgment. See Daniel R Correa, Taking Democracy Seriously: Toward a Jury-Centered Jurisprudence, 22:2 Va. J. Soc. Pol’y & L. 307, 337-340 (2015); Bruce Cain, Redistricting Commissions: A Better Political Buffer?, 121 YALE L. J. 1808, 1836 (2012) (arguing that empirical evidence exists to support the argument that judges in redistricting cases tend to favor the party that elected or appointed them); see also Randall D. Lloyd, Separating Partisanship from Party in Judicial Research: Reapportionment in the U.S. District Courts, 89 AM. POL. SCI. REV. 413, 417 (1995). 

In States like Texas where judges are elected at every level, the matter is further complicated. Elected judges are directly subject to electoral pathologies. Still, the judiciary and legal practitioners expect or hope that people will believe that judges are completely immune to partisanship. So long as all judges are human beings, they are not immune.

Partisanship fuels American government as much today as in the past; however, inquiries into partisanship ills most often center on the Legislative and Executive branches, where the effects of partisanship are clearly visible. In a tripartite government, the manifestations and negative effects of partisanship must be thoroughly examined in every branch. The investigation, in fact, may be more pressing in the judiciary, where partisanship is not always visibly manifested, either due to a conscious effort by the judiciary or the legal profession, or both, to mask judicial partisanship, or an unconscious and unwarranted belief in the superhuman capacity of judges to be free of partisanship. 

In Federalist No. 10, James Madison located the root cause of partisanship in human nature: “As long as [human] reason . . . continues fallible, and [people are] at liberty to exercise it, different opinions will be formed. As long as the connections subsists between [each person’s] reason and his [or her] self-love, [each person’s] opinions and . . . passions will have a reciprocal influence on each other; and the former will be objects to which the latter will attach themselves. . . . The latent causes of faction are thus sown in [human] nature . . . and we see them every where brought into different degrees of activity, according to the different circumstances of civil society.” Judicial activity is obviously included here, but Madison’s focus was on the Legislative branch.  

Madison argued in Federalist No. 10 that the negative effects of factions would be mitigated by “expanding the sphere” of representation. With a large representative pool in the National Government, Madison argued, it would be extremely difficult for any localized faction to garner permanent majority support: “Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discovery their own strength, and to act in unison with each other. . . The influence of factious leaders may kindle a flame within their particular states, but will be unable to spread a general conflagration through the other states. . . .”

Whatever the merits of Madison’s observations, Chief Justice Roberts made abundantly clear: “It’s not our job to represent the people of the United States. Our job is to interpret the law to the best of our ability.” (As an aside, Chief Justice Roberts’ observation concerning the non-representative nature of judges probably invoked a cry of “taxation without representation” in opponents of his Affordable Care Act opinion in National Federation of Independent Business v. Sebelius.) What should citizens make of Roberts’ statement? 

Let’s assume Madison is right about expanded representation, i.e., that it remedies baneful effects of partisanship or faction. Let’s also assume Roberts is right that the judiciary does not represent people, a position held by other jurists. See e.g., Alexander Bickel, The Least Dangerous Branch 24 (Yale Univ. Press, 2d ed. 1986); Erwin Chemerinski, Evaluating Judicial Candidates, 61 S. Cal. L. Rev. 1985, 1988 (1988) (judges represent the law); Wells v. Edwards, 347 F. Supp. 453, summarily aff’d, 409 U.S. 1095 (1973) (judges are servants rather than representatives of people) (affirming district court ruling that the principle of one-person, one-vote arose out of democratic concerns to “preserve truly representative government,” which is not relevant to judiciary makeup). Accepting that partisanship is a permanent part of American politics, deeply infused in every branch of government, what can be done to control the effects of partisanship in the judiciary?  

This question, I submit, is under-investigated or over-neglected and is perhaps one of the most important in a democratic society. This question is not easily brushed aside, as some like to image, by charging that the United States is a Republic, not a Democracy. Madison tried to distinguish between what he considered a “pure democracy,” by which he meant direct democracy, and a Republic, by which he meant a scheme of representative government, i.e., representative democracy. See Federalist No. 10. The difference Madison identified is largely procedural. “In its original Greek form (dēmokratia), democracy meant that ‘the capacity to act in order to effect change’ (kratos) lay with a public (dēmos) composed of many choice making individuals.” See Josiah Ober, Democracy and Knowledge: Innovation and Learning in Classical Athens 12 (Princeton Univ. Press 2008). The “many choice making individuals” did not require direct participation in law making. In fact, Ancient Athens relied on representative bodies—the jury in the People’s Court and the citizen Assembly. Douglas M. MacDowell, The Law in Classical Athens 33–35 (Cornell Univ. Press 1978); Mogens Herman Hansen, The Athenian Democracy in the Age of Demosthenes 181–86 (J.A. Crook trans., Univ. of Oklahoma Press 1999). As Robert Dahl once noted, the difference between “Democracy” and “Republic” is language, the latter Latin term bears little substantive difference from the former Greek term. See Robert Dahl, Democracy and Its Critics (Yale Univ. Press 1989).

Central to both direct and representative government schemes is the substantive notion that people should be governed by laws they choose. Since the United States is a Constitutional Democracy, there are obvious limits to legislative power—the people cannot choose laws that abrogate constitutionally protected rights, although a supermajority can amend the constitution to abrogate rights. “Tyranny of the majority” is often the rallying cry in favor of judicial review of legislation. But this charge is often unwarranted because its proponent’s often fail to account for the judiciary being infected with the same prejudices or irrational passions of the majority or pathological loyalty to party platforms or to political elites. There are also other problems with the “tyranny of the majority” mantra. See Daniel R. Correa, Taking Democracy Seriously: Toward a Jury Centered Jurisprudence, 22:2 Va. J. Soc. Pol’y & the Law 307 (2015).

Contemporary American Jurisprudence must focus on how to mitigate the effects of partisanship in the judiciary, whether judges are appointed or elected, perhaps especially if they are elected. Citizen jury panels provide a great starting point. How can we better utilize jury panels, as representatives of their respective communities, to temper the effects of judicial partisanship? 

  

It is also important to look at the power of judicial review. There are alternatives to strong-judicial review—a practice whereby the judiciary reviews legislation with an option to decline to apply it and invalidate it. Other legislation review procedures closely hewn to democratic norms may replace strong-judicial review, even a weaker form of judicial review, a form of review designed to make a legislative body aware that some legislation may not conform to individual rights without judicial power to invalidate the legislation. 

If anything good comes from hyper-partisanship in the federal judicial nomination process, it is that people pay attention to the judiciary.  This time is as good as any to place the judiciary under a microscope and consider institutional changes.