Rick Hasen
wrote:
The recall, Bush v. Gore,
and Miguel Estrada What do these three topics have in
common?
The connection between the first to is obvious to readers of this blog,
but
what about the third? Miguel Estrada, of course, is a Washington
lawyer who recently withdrew his
nomination for a judgeship on the United States Court of Appeals for
the D.C.
Circuit. He did so in the face of a relentless filibuster by Democrats.
Some of
those who opposed the filibuster said that it was unfair, and among
those who
said that, some argued that the ideology of the judge should be
irrelevant to
the decision whether or not to confirm the judge---the only question
should be
one of judicial competence, at least on the Court of Appeals.
The recall litigation in the Ninth Circuit should end any serious
discussion of
the irrelevance of ideology to the confirmation process. How is it that
most
knowlelgeable observers were able to handicap the chances that the
three judge
panel would reverse the district court in the punch card recall suit?
How is it
that knowledgeable observers now predict that the three judge court
decision
will be overturned? Those knowledgeable observers know the ideological
leanings
of the appellate judges and therefore can extrapolate about how
sympathetic
these judges are likely to be to the equal protection claims of voters
using
punch cards, compared to state interests in a speedy recall election. Of course ideology matters,
and of course it should be relevant in
confirmation decisions of intermediate appellate court judges.
I’m confused
about what you are saying here, Rick.
Your conclusion that “of course ideology matters” suggests
that the current debate about the proper standards for judicial
nominations and
confirmation is somehow trivial. You also seem
to be impugning the objectivity
and/or fairness of the Ninth Circuit en banc panel before the fact. I am not sure that either conclusion is
well supported.
Although I favor
the panel’s decision, it does raise some significant issues that any
reviewing judge – “ideological” or not – would have to confront. Perhaps it would be prudent to wait
until the opinion, or at least the argument, before concluding that the
decision process was driven by “ideology” rather that “competent”
adjudication. Certainly, the mere
fact that newspapers, which may or may not be “knowledgeable,” are
predicting an outcome is not sufficient to brand any or all of the
judges on
the en banc panel as “ideologues.”
A further problem
with your logic is the assumption that the decision *only* involves weighing equal
protection claims against a
purported state interest in a speedy recall. There
are significant procedural issues
about the role of a federal court in issuing injunctions, as well as
the
standard of review used by the panel, that are completely *neutral* as to ideology. It is entirely possible that one or more
of the judges will decide the case on principled grounds that will
contravene
not only his personal political inclinations, but also his substantive
views on
the equal protection clause. The questions
at argument – and the opinion – may shed light on whether these
particular judges articulate and act upon principle or whether they are
slaves
to “ideologies.”
In the case of Miguel
Estrada, there was overwhelming evidence that he allowed his political
ideology
to dictate both his treatment of parties and the decisions he issued. His nomination was a threat
both to the
ideological “balance” of the judiciary and the public’s
perception that the judiciary is capable of enforcing the law according
to a
coherent judicial framework that respects legislative and
constitutional
processes. The debate over the
proper standards for confirmation is complex, particularly when
presidents from
one party nominate significant numbers of partisans over an extended
period of
time and Senators perceive a cumulative imbalance. It
would certainly be tragic if every Senator
voted on every judicial nominated based on his or her presumed
ideology,
constrained only by the political realities of the confirmation process. However, where individual nominees
manifest ideologies that interfere with judicial objectivity, or where
the overall
make-up of the judiciary is out-of-step with Congress (as it was during
the New
Deal), the ideology of judicial nominees will be a “relevant”
factor in the confirmation process.
I don’t think
the outcome of the ACLU case will provide any great epiphanies in this
long-standing debate.