Why We Vote
The Washington Post has a story about the U.S. Court of Appeals for the 6th Circuit, in Cincinnati. Seems that pretty much every case that questions use of power by the state gets special treatment by the court's Republicans, mainly the Bush appointees.When a small panel, the usual venue, makes a ruling that overturns an excess or an unjustified exercise of power, if it goes against the state the Republican majority invokes rules to re-hear the case with the full 16-member bench.
As a result, it can enforce a state-friendly stance that denies retrials, allows questionable evidence, and generally supports those in power at state level. This reflexive support for authority is a smoking gun indicating authoritarian mindset, and not rational jurisprudence.
"...independent legal scholars say Bush's picks in particular have been more likely than Democratic appointees to uphold the positions of police and prosecutors, and less likely to alter verdicts because of procedural and legal mistakes in handling defendants."
The constant disagreement between authoritarians and those interested in sound judgments gets no relief, with 10 of 12 appeals courts dominated by Bush appointees. These judges rarely find a reason to void error-filled trials, or to grant any redress to plaintiffs against the state. This undercuts the value of well-tried cases, like show trials devalue all trials.
As a result, it can enforce a state-friendly stance that denies retrials, allows questionable evidence, and generally supports those in power at state level. This reflexive support for authority is a smoking gun indicating authoritarian mindset, and not rational jurisprudence.
"...independent legal scholars say Bush's picks in particular have been more likely than Democratic appointees to uphold the positions of police and prosecutors, and less likely to alter verdicts because of procedural and legal mistakes in handling defendants."
The constant disagreement between authoritarians and those interested in sound judgments gets no relief, with 10 of 12 appeals courts dominated by Bush appointees. These judges rarely find a reason to void error-filled trials, or to grant any redress to plaintiffs against the state. This undercuts the value of well-tried cases, like show trials devalue all trials.
Advertisement
This is a very significant problem in the federal judiciary, Tom, and thanks for bringing it up.
Statistical studies have been made comparing republican president appointee rulings versus democrat president appointee. A book length treatment by the omnipresent Cass Sunstein:
Are Judges Political?: An Empirical Analysis of the Federal Judiciary by Ellman, Schkade, and Sunstein, Brookings Institution Press [2006]
Sunstein found that republican appointees were far more likely than their democratic counterparts to vote for state or business interests over individuals and that their conservatism was exacerbated when they found themselves in majorities in 3 member panels...whereas a similar intensification did not occur when democratic appointees were in majorities.
Given that the majority of the federal judiciary is now republican appointees, that bodes ill for litigants challenging state or corporate power and we saw that played out over and over again in the last eight years.
December 8, 2008 3:10 PM | Reply | Permalink
An accounting of DoJ prosecutions over the Bush years showed a huge disparity of cases against Democratic politicians. It's possible, but not very likely, that Democrats are by nature more corrupt.
From a Paul Kiel TPM story
http://tpmmuckraker.talkingpointsmemo.com/archives/002420.php
"A study of reported federal investigations of elected officials and candidates shows that the Bush administration’s Justice Department pursues Democrats far more than Republicans. 79 percent of elected officials and candidates who’ve faced a federal investigation (a total of 379) between 2001 and 2006 were Democrats, the study found – only 18 percent were Republicans. During that period, Democrats made up 50 percent of elected officeholders and office seekers during the time period, and 41 percent were Republicans during that period, according to the study."
December 8, 2008 7:19 PM | Reply | Permalink
If one doesn't want to spring for the book, here is the SSRN article of the research on which the book is founded:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=442480
December 8, 2008 5:17 PM | Reply | Permalink
Thanks, Tom. The Constitution should be protecting citizens, not favoring corporations. We definitely need courts where the "little guy" can seek redress.
December 8, 2008 6:45 PM | Reply | Permalink
So much of the judiciary is political but we are fooling ourselves if we see this a new phase in 'judicial reasoning.'
If the issue concerns opening the courts to dissatisfied shareholders in a corporation, we pretty much know how certain justices are going to vote.
If the issue concerns documents hidden by themanagement of a corporation, we can make some predictions there too.
If the issue concerns wire tapping, warrantless searches, confessions, freedom of the press...we are pretty sure about the odds of success before a certain panel of judges.
What will be interesting will be the tension between the judiciary and the other branches of government when the other branches of government are primarily Democrats and not Republicans.
Bugliosi's book on the 2000 election debacle is uproariously funny. If you are in a certain mood.
God, I hope this New Administration appoints hundreds of judges all over the country over the next eight years and more.
December 8, 2008 7:54 PM | Reply | Permalink
Not new, just public and reported in WaPo.
December 8, 2008 8:11 PM | Reply | Permalink
In 2004, 24 liberal groups protested against Bush's judicial picks. Some of the following are why they protested:
Worst.President.Ever.
December 8, 2008 11:05 PM | Reply | Permalink
Indeed. Worst President Ever.
December 9, 2008 3:00 AM | Reply | Permalink