When it comes to the federal bench, at least, former presidential candidate Mike Dukakis was right: the real issue isn't ideology — it's competence.
This may be hard to believe in the wake of the ideologically charged judicial confirmation battle involving Judge Charles Pickering. But it's true. When you take a systematic look at the output of the federal judiciary, and in particular the federal Courts of Appeal, it becomes glaringly obvious that the biggest problem confronting the federal courts isn’t ideologues run amok, but a bureaucratic desk-clearing mentality that is in some ways worse than ideological bias, because it’s more deeply rooted and harder to change.
Together with professor Brannon Denning of Southern Illinois University Law School, I have spent the last several years looking at the way that the lower federal courts have responded to several key United States Supreme Court decisions on the reach of Congress' power to regulate interstate commerce. Between us we have surveyed the lower court opinions invoking these major decisions. And it’s not a pretty picture.
According to the standard story, the Supreme Court lays down principles of law that are then followed by lower courts. In the real world, things don't work this way. In the first installment of our project, which was published in the Wisconsin Law Review in 2000, we looked at five years worth of lower-court cases applying the Supreme Court’s decision in United States v. Lopez. In Lopez, the Supreme Court held that Congress lacked power to regulate the simple possession of firearms in a school zone. Though both Lopez's boosters and its critics expected this decision to call a great many other federal statutes into question, in fact in those five years exactly one such statute was struck down by a lower court applying Lopez (it was part of the Violence Against Women Act, and the decision to strike it down was upheld by the U.S. Supreme Court).
In every other case, the lower courts found reasons, often exceedingly unpersuasive ones, to uphold the statutes in question — or, more troublingly still, simply gave no reasons at all beyond a conclusory statement that the case in front of them wasn't identical to Lopez. In a followup article now in press, we have reviewed over a year's worth of decisions since the Supreme Court agreed that the Violence Against Women Act was unconstitutional, and strongly restated its position on the limited nature of Congressional power. Lower courts are taking somewhat more notice this time around, but not much more.
It would be tempting to dismiss this as a sign of big-government-loving liberal judges bending the law to support their political agenda, and sometimes that may be the case. But many of the judges who seem more anxious to make the cases go away than to do justice are those generally considered conservatives — one, in fact, is a judge whom liberals have spoken of as a potential Bush Supreme Court appointee, whom they find worrisome because of his "hard-right" tendencies.
So though left-wing ideology may play a role occasionally, the real culprit seems to be something worse: the bureaucratic mindset that regards any change to established patterns of doing business as the worst of all threats. Over and over again, these opinions make clear that many judges on the federal appellate courts would rather ignore Supreme Court decisions than go to the trouble of examining acts of Congress for constitutionality under those decisions, and some even state quite plainly that such a result would be unacceptable because it would require them to reconsider some of their own previous decisions; others make very clear that they have no interest in declaring federal criminal laws unconstitutional if that would result in letting criminals go free, something that can hardly be described as a "left-wing" bias.
Furthermore, federal courts are simply ducking responsibility for deciding many cases at all. In cases deemed to be unimportant (one imagines the litigants would disagree), decisions — usually drafted by staff attorneys, not the judges — are handed down in "unpublished opinion" form, meaning that they have no precedential weight and cannot be cited by lawyers in future cases. Such decisions, in the minds of many critics, are not judicial at all, and their lack of precedential weight means that courts are free of the constraint imposed by knowing that they will have to live with a decision in the future.
The federal judiciary is given what amounts to lifetime tenure in office in order to ensure that it will be fearless in enforcing the Constitution. Yet our research suggests that it is not living up to its responsibilities. (Nor is the problem limited to the commerce clause. If you have free access to LEXIS or WESTLAW, just search "qualified immunity" and see what comes up. You will be appalled.)
This poor judicial work suggests that the judicial appointment and confirmation process isn't doing its job. Instead of judges committed to defending our liberties, we're getting far too many timid timeservers who don’t want to rock the boat. Perhaps that's because the senatorial screening process now weeds out the independent-minded, who probably leave too many controversial views in plain sight, or perhaps it’s a function of the heavy caseload facing federal courts today. But in between tut-tutting about the Bork-style confirmation fights that have become the norm, members of the Senate and the administration need to look into why the federal judiciary has lost its way.
Glenn Harlan Reynolds is a law professor at the University of Tennessee and publishes InstaPundit.Com. He is co-author, with Peter W. Morgan, of The Appearance of Impropriety: How the Ethics Wars Have Undermined American Government, Business, and Society (The Free Press, 1997).