Legal Research Paper: Are Judges Political? Must they Be?

Law and Politics - How do Judges Make Decisions?

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Introduction 1
The Roles of Judges in Relation to Politics 2
Judges Mixing with Politics 5
Potential for Judges to Remain Outside of Politics 17
Ethics and Implications 22
Discussion 25
Conclusion 25
Bibliography 26

Introduction

The role of judges in the United States judicial and court system is commonly perceived as one only relating to the cases they supervise and rule within, or otherwise objectively addressing the tasks in which they are charged with. However, judges have a considerable amount of power, both in terms of making choices for the court and the cases they supervise; here, a wide range of individuals aside from criminals accused of crimes (or the individuals from the rarer incidents of an incorrect guilty verdict) have argued that judges commonly assume roles that supersede objectiveness for a sort of bias political role. Naturally, a judge abusing their power to support a political agenda is unethical and undesirable for citizens not supporting the particular agenda and ideals supported, while completely objective and responsible judges are sought for an honest and effective court system. This review, discussion, and analysis attempts to answer the question "are judges political?" through reviewing a wide range of literature, analyzing the examples and conclusions provided, considering the alternate side of the argument, and ending with discussion and conclusion sections (revealing the implications and recommendations for future research or development). Overall, following the provision of many cases and analyses supporting the assertion that judges are indeed political, with many frequently attempting to further agendas both within and outside of their power, it is evident that the ethical implications of the position should be better considered and enforced more strongly in future developments. Meanwhile, it is likely that some judges are able to completely avoid a political role, but this appears to be more of the exception than the rule. Following a presentation of both sides of the argument, a review of ethical implications, and a discussion, the conclusion supports the assertion of political roles frequently assumed within the judicial system, while recommending strategies for research and development to minimize these instances. Despite the frequency of judges having at least some political role in their careers, there are greater actions which can be taken to minimize the prevalence of this or introduction of judges intended to serve political roles throughout their terms.

The Roles of Judges in Relation to Politics

Although the degree of 'mixing' judges with politics is commonly debated by experts and analysts, the potential for these areas to be blended or even potentially exploited is commonly acknowledged near a consensus level. The potential for judges serving a political role is substantially high, both because they can find a way around the regulations for their positions to push their own agenda, and because they may be aware that they are hired into a position because of their stances and willingness to support a certain agenda desired by authorities (i.e. such as in the case of a Supreme Court judge recommended by the president). Considering all of this potential, it is probable that a judge will consider the nature of politics in at least one case throughout their career as a judge (neglecting other positions for the purposes of this discussion and analysis); considering this, as well as the considerable potential for judges to turn to politics for more than one case, judges are commonly political by definition. This is not to assert that judges are supposed to be political, that the entirety of judges will make a critical decision based on politics, or that the duties and regulations for judges have been established to serve pure political needs, it is only asserting that the majority of judges will bend to politics at some time in their career. Outside of this, the roles of judges can be related to politics in certain ways, but judiciary roles and decisions in themselves have never been intended to be political in nature. However, as this discussion will show, the potential for politics to be a dominating force in judicial roles has only increased with evolving legislation.

Sunstein reported "in the last two decades, the United States has witnessed some exceedingly heated debates about the composition of the federal judiciary," further questioning "are judges 'activists'? Should they stop 'legislating from the bench'? Are they abusing their authority? Or are they protecting fundamental rights in a way that is indispensable in a free society? What, exactly, are they doing, and what should they do differently?" This shows a line of questioning common in the past decade, and while the ideals related to protecting rights in a way that only they can do are desired, the legislation from the bench can be an overwhelming temptation or even expectation from current events, higher authorities, public opinion, or any other aspect influencing a judge as they realize they have a power to play some political role (and legally) from their position. Some judges may feel they should remain objective at all costs regardless of circumstances, while others may feel they should use all of their power to influence the world as they see fit; the latter may have ethical implications of its own, with judges feeling they are actually being more ethical in their minds than they would be by avoiding extraordinary influence. Sunstein also asserted that numerous presidents in the United States have made an effort to fill the federal courts with judges that appeared to share the same agendas as them; instances of noted shared opinions regarding controversial issues have included topics such as abortion, protecting the environment and environmental sustainability, criminal rights, separating church and state, and similar controversies that led analysts to assume that decisions to select judges were based on these shared opinions rather than experience or other qualifying factors. Moreover, this practice has become questioned within the United States Senate, with common discrepancies between presidential selection and Senate selection, leading to presidential preferences being blocked from final selections. Sunstein used the example of Bill Clinton to illustrate this practice and its reception in the Senate, claiming that the Senate Committee on the Judiciary was controlled by republicans, leading to a refusal to schedule hearings for certain nominees that blocked them from being appointed to the higher positions. Clinton was accused of selecting judges for their liberal viewpoints. In another example, George W. Bush was asserted to have selected judges for their extreme conservative stances, while even the minority of democrats in the Senate was reportedly successful in filibustering nominees perceived as controversial.

While the presence of bias, using agendas as a motivation for selection, or judges clearly pushing political agendas throughout their career cannot be proven beyond a reasonable doubt, the evidence and arguments provided by analysts such as Sunstein do show a clear potential for this to occur, leading many experts, analysts, government figures, and others to question the extent and potential for judges to be political in this regard. Moreover, as this discussion argues, the cases illustrated by the range of analysts discuss does provide sufficient and convincing evidence that judges are commonly political in nature. While judges are bound to follow the law, facing the penalty of being removed from their position (or worse), they appear to commonly use their position to based on outcomes they wish to perceive; additionally, judges may also wish to purse the agendas of those in a higher position of power (such as the president), and these two factors appear to have a greater potential to influence the decisions of judges (at least some point in their career) than the most stringent ethics and objectivity. The temptation to pursue agenda in cases where it can be done discreetly without violating the law or regulations is likely too great for the majority of judges to ignore, and this may even be human nature. The reason it is likely so persuasive is because many judges may be convinced they are pursuing the greater ethical good, or may even have religious motivations which supersede ethical obligations and regulations in their minds.

Citing other examples of perceived political roles in selecting judges, and further illustrating the potential for politics to have a relationship in the judicial field, Sunstein described other cases of presidential desires rejected through the Senate. President Ronald Regan had desired the appellate judge Robert Bork to be elected, but this was rejected in a 58 to 42 vote within the Senate; it was reported that the rejection was predominantly the result of ideology rather than merit or experience. Similarly, two judges selected by George W. Bush were reportedly 'precleared' by republicans, although Supreme Court nominees were known to be perceived as unfavorable by democrat senators. The president's third choice, Samuel Alito, was highly controversial because of his extreme conservatism. However, despite public knowledge of reactions in the Senate, he was reported to have won through a 58 to 42 vote, which was also perceived as controversial and the result of political and ideological influence superseding experience and merit. Sunstein further reported on the Supreme Court and the nature of the potential to 'design' the systems through selecting the key figures, stating "but the focus on the Supreme Court should not obscure the immense importance of lower court nominees. The decisions of lower courts are rarely reviewed by the Supreme Court; their decisions are effectively final. As a result, the courts of appeals play an exceedingly large role both in settling disputes and determining the likely direction of the law." This clearly reveals the potential for politics to be a guiding force in the judiciary system, involving judges which aim to serve a political role from with the power of their positions and confines of the regulations demanding their objectivity. Moreover, because of this potential, elections for lower court nominees have commonly led to national debates. Meanwhile, the potential for judges to assume political roles and push presidential agendas is difficult to prove or use as a rationale for removal once the nominee has been elected into their position. Even the behavior of judges can be difficult to define, because perception only has access to the judge's decisions and ability to follow regulation; naturally, it cannot access their motivations, thoughts, or willingness to prioritize their idea of improved society versus a uniform set of ethics which all judges are required to objectively follow. In this area, Sunstein poses a range of questions, inquiring into the relationship between political convictions and judicial votes, examining judges in terms of conservative or liberal classifications, whether the general abidance by the law makes either categorization irrelevant, or whether it should be obvious that the answer to the last two inquiries is no.

Perhaps the most important relationship to examine when considering the potential for politics to motivate decisions in the judicial system lies within the presidential decisions and possible attempts to design the system. As described about, there have been multiple controversial events and decisions made in this area, and despite the evidence of political agendas, it is difficult to monitor and regulate such motivations. The court of the appeals is tasked with deciding which cases are contested or challenges, but generally not as much as the Supreme Court. Sunstein asserted that it is the decisions of such courts which can be examined as an assessment of the role of politics in the judicial systems and judgments, providing clear evidence of the relationship and potential of politics in the judicial system; as stated, however, this subject cannot be clearly proven in either way, especially when attempting to relate the topic to the whole or majority of judges and their roles. However, it is possible for the government and analysts to assess how democratic or republican appointees vary in terms of assignments and cases, providing further perspective and commonly influencing the degree which the Senate and Congress follow or attempt to influence presidential decisions. Additionally, assessing presidential appointments can reveal how appointment decisions are made and influence states of affairs, and the potential for views to match in areas which prompt analysts to suggest political agendas are underlying causes in selection, operation, or other areas. Overall, Sunstein states that many people feel that (generally), political ideology does not and should not affect legal judgments; with this, the author asserts agreement with this general rule, but points out how political agendas appear to impact a wide range of decisions which have shaped the direction of development and outcomes. The following section presents a range of reports in this area, describing areas that have increased the potential for political influence, have appeared to have affected outcomes, or have otherwise provided some evidence of political influence superseding complete objectivity.

Judges Mixing with Politics

Claims that politics mixing with elements of the judicial system, including the very design of the judicial positions and decisions they make, is not a recent phenomenon. As outlined above, Sunstein provided evidence of past presidents being implied to have political agendas to some extent, and a range of authors in the 1990s and 21st century has implied that complete objectivity has been in question numerous times. According to Fiss, this has even been occurring for many years prior to this, while such judges would have faced lesser challenges from media exposure, investigations, or otherwise. Currently, there appears to be a wider diversity of political opinions and controversy, but the decision to follow political agendas rather than complete objectivity is subject to much more media scrutiny and exposure. Fiss reported "the two-hundred-year history of the Supreme Court has been divided among a dozen or more chief justices. Each segment has achieved a separate identity, each bears the name of the chief justice, and some have been deemed great, others mediocre, some quite dismal. By all accounts, the Court over which Melville Weston Fuller presided, from 1888 to 1910, ranks are among the worst. In its day the Fuller Court was the subject of heated criticism, and it became an issue in the presidential election of 1896." This is an example of political controversy and questioning the motivations of agendas in the 19th century, at a time where united political agendas and design could have been as easily orchestrated as the political system behind the American Revolution. In this instance, analysts claimed that the court had been converted into a mere instrument of the 'propertied' classes, ultimately serving to restrict mass efforts to minimize influences from large organizations which could be destructive to them; the court was accused of favoring the interests of large organizations for the sake of economic health, trade, and other political reasons despite the negative impacts on 'everyday' people or the obligation to remain entirely objective throughout legal proceedings. However, the people that believed they were perceiving such a political agenda did not choose to be silent about it, and led a multi-part campaign that continually attempted to take action against the Fuller court. The first attempt against the court was reportedly unsuccessful, and the court would not be so closely scrutinized again until the 20th century. Then, it was attacked throughout the public, leading to the Lochner v New York case of 1905, resulting in the invalidation of a statute for a 60 hour workweek ceiling in bakeries. Shortly after this, additional decisions were made regarding the protection of union actions (invalidating protective legislation) and applied the Sherman Antitrust Act to boycotts. Many sided with Lochner in attempts to stay the accused politically motivated actions of the court, but both the extent of the progress and motivations of the court nonetheless remain debatable.

In the 21st century, a combination of presidential decisions, actions of Senate, behavioral research, and other data has been examined. The improved record keeping and organizational systems that have involved over time, the capacity for the media to examine and assess (as well as report) aspects of the judiciary system, and the desire for formal research and analysis in any areas (as well as the improved capacities) have all served to improve the ability to assess the potential for political roles in the judicial system. According to Gillman, behavioral research has potential to further examine as well as confuse research regarding judicial decisions, because it can mislead people into assuming that the rationales are exaggerated while judges are effectively lawless. Such implications are generally not intended to assert that judges are completely and entirely guided by personal and political ideologies, but rather that they allow such ideologies to influence decisions at any level while they are obligated to remain completely objective. Meanwhile, Gillman asserted that he does not doubt the results of statistical analyses, assuming they can be objectively examined, and states that judicial decision making has been shown to be influenced by politics to at least some degree. Approaching the topic more directly from the qualitative angle, Gillman wrote "does law influence judicial decision making? Many scholars, in law schools and elsewhere, spend a great deal of time reviewing, categorizing, and engaging legal texts. They assume that by knowing various rules, principles, or structures of argument we will be in a better position to understand a wide range of social relations and political practices, including why judges decide cases as they do. Advocates and analysts know that there is a personal element to judging, and they realize that a case often turns on who is making the decision." Additionally, however, the author also points out that it is also believed that assumed personal influences are generally examined, restricted, or "filtered through distinctive professional obligations and jurisprudential schools of thought." In the case of the lawyer, such a degree of personal influence would be considered malpractice, although it is more difficult to pinpoint and react in a similar manner when the motivations of judges are in question.

Amid the controversial topic at hand, and debate surrounding the general topic and any accusations, is the natural fact that not all people agree about the reality of the situations or commonality of motivations in general. Gillman asserted that in the legal field, it is nearly considered common knowledge or a "social scientific fact" that law itself has little to no influence on practices in the judiciary field. Here, the majority of the scholars researching phenomena are stated to be 'positivist-empiricists' that assert the impressions of 'jurisprudentially inclined' scholars (as well as testimony from judges) should not be analyzed at their face values. Gillman further reported, "from their point of view, decades of social science research designed to test these impression has demonstrated instead that ideological and political considerations derive decision making. This research has been so completely internalized by many political scientists that it is considered the common sense of the discipline that Supreme Court justices...should be viewed as promoters of their personal policy preferences." With this, behavioralist findings have generally had the strongest case for the presence of external and unethical influences in legal practices, although they also have the strongest potential to persuade authorities to scrutinize or even reform areas of legal practice.

Another view common in this area is the perspective that judges have to 'give up' certain values and ideologies in exchange for their robes, and this view used to be common in the legal system. Among these forfeited areas are a desire to carry through in speaking out against issues perceived to come before them, alongside partisan political activity. Meanwhile, however, legislative developments have been reported to have 'undone' these assumptions, particularly through the Republican Party of Minnesota v. White case.

Potential for Judges to Remain Outside of Politics

Discussion
Abstract
Conclusion

Considering history and the current state of affairs, no one has proven beyond a reasonable doubt that political or personal ideologies affect the majority of judges at some point in their careers, effectively meaning that judges are generally not entirely objective through legal processes. However, the combination of decisions made in the presidency, courtrooms, Senate, and the behavioral and other analytical research conducted does imply that the majority of judges are likely affected and motivated by political ideologies at some point in their career. The general assertion of Sunstein was that the typical judge in their typical decision making process does consider the law and circumstance instead of ideology, but the frequency of questionable actions and decisions combined with the behavioral analyses are stressed by this analyst as well. Additionally, the desire for presidents to design the judicial system based on their agendas or ideologies has commonly been suggested, while even the nature of legislative developments described in the cases presented in this discussion (and there are likely more) further suggest that this occurs on some level. Addressing the question of whether judges are political in an absolute sense in more challenging, however, seemingly demanding this to be a factor to some substantial degree for most if not all judges. Addressing this from the assumption the question asks whether judges are political to any degree, considering whether judges have the means and motivation to act in accordance with political ideologies at any point in their career, the answer appears to be 'yes' for the majority of judges. Again, the author of this discussion acknowledges there is no real way to prove a definitive answer to the question through any clear means, but the literature and nature of circumstances imply that the majority of judges pursue political ideologies through the confines of existing regulations. Few will surpass the law or regulations, but the desire to integrate one's own perspective of ethics regardless of objective expectations appears to be commonplace through analyses and in terms of human nature.

Bibliography

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Fiss, Owen. Troubled Beginnings of the Modern State, 1888-1910. New York, NY: Macmillan.

Gaines, Larry and Roger Miller. Criminal Justice in Action. New York, NY: Cengage Learning.

Gillman, Howard. "What's Law Got to do With It? Judicial Behavioralists Test the 'Legal Model' of Judicial Decision Making." Law and Social Inquiry 43: 465-504.

Kennedy, A. How U.S. Courts Work. Darby: PA, DIANE Publishing.

Liptak, Adam. "Judges Mix With Politics." The New York Times.

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Skaggs, Adam. "Judges and Politics Don't Mix." Brennan Center for Justice.

Sunstein, Cass. Are Judges Political?: An Empirical Analysis of the Federal Judiciary. Washington, D.C.: Brookings Institution Press.

Technology in a Legal Firm: https://essayscam.org/forum/fe/working-law-firm-application-5669/