An example showing law is not politics by another name in the federal district courts

If there is anything I desperately want to believe it is this:  The great majority of federal district judges do not act like politicians in black robes. In the trial courtrooms, where the great bulk of the real work of the federal courts are done, federal judges try their fragile best to apply “the law” as they understand it.

Today, I am overjoyed at a headline in a major newspaper and the accompanying front page article. Please read: Robert Barnes, From a diverse group of judges, a unanimous opinion on same-sex marriage, Washington Post (May 26, 2014).* Powerfully, Barnes writes:

The headlines are so consistent, they could be written by a computer: “Judge strikes down state ban on gay marriage.”

But the federal judges who have supplied an unbroken wave of victories across the country to supporters of same-sex marriage are more diverse than their rulings would suggest: white and black, gay and straight, nominated by Democrats (most of them) and chosen by Republicans (a few of them).

Long ago, after I wrote both partial birth abortion opinions that made it to the Supreme Court (where I went 1 for 2), I came to the conclusion that federal district judges were perhaps the last group of federal judges who applied the law (mostly through the precedent based common law reasoning) rather than their own policy or political views. See, for example,  Richard G. Kopf, AN ESSAY ON PRECEDENT, STANDINGBEAR, PARTIAL-BIRTH ABORTION AND WORD GAMES-A RESPONSE TO STEVE GRASZ AND OTHER CONSERVATIVES, 35 Creighton Law Review 11 (2001-2002).

I was tickled pink (to use a phrase my lovely grandmother loved) when the legal academics confirmed my views after doing the hard empirical work.  See, for example, the following post entitled It’s a fact: Federal district judges are carpenters not politicians

Please forgive me for appearing to beat the hell out of dead horse, but I return to The Behavior of Federal Judges. In this post, I want to concentrate on the full title of the book–that is, The Behavior of Federal Judges, A Theoretical & Empirical Study of Rational Choice.  In particular, I want to focus on “rational choice” and district judges.

Epstein, Landes and Posner found that federal district judges as a group tend to apply legalistic reasoning to resolve cases rather than relying upon their own ideological preferences. While this is good news for folks like me who view the proper judicial role as weak, one wonders why federal district judges, unlike say Supreme Court Justices, tend not to be ideological in their decision-making.

. . .

Federal district judges do so because the alternative–going outside the norm of conventional legal reasoning–is wasteful. That is, the federal district judge will have to work hard to make an ideological point not supported by conventional legal reasoning, and that work will ultimately be unsuccessful–a wasted effort. The data collected and analyzed by the authors strongly supports their ultimate conclusion that federal district judges are not politicians in black robes.

. . .

Epstein, Landes and Posner have found that most of the time most federal district judges apply rules and precedents that do not necessarily coincide with their personal views. This group of judges act more like carpenters than politicians. This data driven conclusion is enormously comforting for those who worry about the proper role of the federal judiciary in a democratic society.

So, today, as I proceed out the door for my “infusion” of chemotherapy, I am also infused with pride for the many men and women who sit as federal trial judges. When reading the opinions of federal district judges, the public, Federalist Society members, American Constitution Society members, Circuit judges, and Supreme Court Justices may not like what they see. But what they see is not politics.


*As always, thanks to How Appealing. What a wonderful resource!

Justice Ginsburg shows us (again) that law is not politics

I have decried the calls for Justice Ginsburg to resign and the blatantly political calculations that drive those calls. See here and here. In a rare interview with the New York Times on Sunday, Ginsburg explains that she will retire when her health declines and not before. She is unconcerned with the political leanings of the President who will nominate her successor. And that is true even though the Justice believes that the present Court is unusually activist.

Thanks to Justice Ginsburg, even legal realists (like me) can still believe that law is not politics.


PS Again, thanks to How Appealing. What an incredible free resource.

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