Posted by Jonathan Adler:
"Ideological Warfare" on the Sixth Circuit:
http://volokh.com/archives/archive_2008_12_07-2008_12_13.shtml#1228745082
Today's Washington Post features [1]a front-page article detailing the
effect of President Bush's nominees on federal appellate courts,
focusing on the U.S. Court of Appeals for the Sixth Circuit. It's an
interesting piece, as is [2]this companion article on the politics of
judicial nominations going forward, but I worry that it might
exaggerate the ideological or partisan divisions among appellate
judges, even if only because it focuses on the unusually divided Sixth
Circuit.
The heart of the article focuses on the Sixth Circuit, and it portrays
a Court unusually riven along ideological lines, particularly on
criminal justice issues. This perception of the Court is widespread
(indeed, I've blogged extensively about it), but the article suggests
at least some judges see it this way too. It even quotes one judge to
that effect.
Under 6th Circuit rules, full court, or "en banc," hearings are
allowed in order to ensure "uniformity of the court's decisions"
when separate panels of three randomly appointed judges disagree,
or when questions of "exceptional importance" are at stake. But
some of the court's Democratic appointees allege that the
Republican-appointed majority is grabbing and reversing cases
whenever those judges disapprove of the social consequences of the
Democratic appointees' rulings.
"Anytime two of us show up on a panel and they don't like it, they
yank it," said one Democratic-appointed judge on the circuit, who
spoke on the condition of anonymity to avoid directly provoking
colleagues. . . .
Ideological trench warfare is frequently on display in the 6th
Circuit's austere fourth-floor hearing room in the Potter Stewart
Courthouse here, which shifted to Republican-appointee control in
mid-2005. Rulings sling around words such as "absurd," "rash,"
"meritless," "Pollyannaish," "unconscionable," "careless,"
"overwrought" and "alarming" -- from jurists on each side, directed
at the judgments of colleagues appointed by the other political
party. Tensions between Democratic and Republican appointees have
become so intense that they no longer regularly lunch together at
the city's University Club.
The story also discusses the impact of Bush nominees on the appellate
courts as a whole. After eight years of judicial appointments by
George W. Bush, Republican nominees are the majority of judges on most
Circuits. This is what one would expect after eight years of a GOP
President (and Republican control of the White House for 20 of the
last 28 years). I've written about the current balance of nominees on
the federal appellate courts and the likely effect of Obama's
Presidency [3]here.
I should note that the story contains one small error. It
characterizes the Sixth Circuit's October en banc decision in
[4]Republican Party v. Brunner as a 9-6 decision decided along party
lines, counting Judge Helene White, who was technically nominated by
Bush, as a Democratic nominee as she had been a Clinton nomination to
the Sixth Circuit and her nomination was part of a deal with Senate
Democrats. Although some news outlets initially reported the decision
as 9-5 or 9-6 (because, due to time pressures, the initial opinion was
released before all of the judges had registered their vote or filed
opinions), the decision was actually 10-6, and one Clinton appointee,
[5]Judge Ronald Gilman, voted with the majority. The Supreme Court
[6]subsequently overturned the en banc decision.
References
1.
http://www.washingtonpost.com/wp-dyn/content/article/2008/12/07/AR2008120702876_pf.html
2.
http://www.washingtonpost.com/wp-dyn/content/article/2008/12/07/AR2008120702703_pf.html
3.
http://article.nationalreview.com/?q=NjBmNzA4YThiN2YwOWVjODdkMzI1MTBiZWE5NzY1OTQ=
4. http://www.ca6.uscourts.gov/opinions.pdf/08a0374p-06.pdf
5.
http://www.ca6.uscourts.gov/lib_hist/Courts/circuit/judges/judges/gilman.html
6. http://volokh.com/archives/archive_2008_10_12-2008_10_18.shtml#1224277790
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