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Judge Posner Skewers Textualism-Originalism (Thomas, Scalia), And Reveals the Increasing Politicization of Judging by Conservatives

By Jack M. Balkin

The following passage is from Judge Posner?s fascinating?that is, informative, insightful, provocative, sometimes strange, exercise in unadorned truth telling about judging (by his own lights)?How Judges Think:

This politically conservative response (?originalism? or ?textualism-originalism?)?which under different conditions could be a liberal response but is more congenial to conservatives because of its evocation of an era more culturally conservative than today?illustrates a more general tendency of judges to reach backward for the grounds of their decision. By doing so they can if challenged claim to be employing a different methodology that involves deriving conclusions from premises by logical operations as distinct from basing action on a comparison of the social or political consequences of different possible outcomes. But the backward orientation actually enlarges a judge?s legislative scope, and not only by concealing that he is legislating. A judge or Justice who is out of step with current precedents reaches back to some earlier body of case law (or constitutional text) that he can describe as the bedrock, the authentic Ur text that should guide decision. And the older the bedrock, the greater the scope for manipulation of meaning in the name of historical reconstruction or intellectual archeology?.
The originalist?s pretense that [one can derive authoritative interpretations applicable to present disputes in this manner] makes originalism an example of bad faith in Sartre?s sense?bad faith as a denial of freedom to choose, and so the shirking of personal responsibility...[Justice Breyer also gets some criticism here].
Sartrean bad faith need not be conscious?.He considers his decisions legitimate, concludes they must therefore be legalist, and constructs a legalist rationale that convinces him that his decision was not the product of his personal ideology.

Through a statistical comparison, Posner shows that conservative Justices on the current court more consistently vote in accordance with their political values than do liberal Justices (some of the numbers can be found here); and that the current generation of Republican appointed federal court of appeals judges shows a significantly higher proportion of conservative votes than Republican appointed judges over the past eighty years (Republican appointed federal appellate judges from 1925-2002 vote conservative 55.8% of the time; Republican appointed currently sitting judges vote conservative 66.9%); whereas there is no significant change in the conservative voting pattern (49.6%; 49.7%) of Democratic appointed judges between these two periods, and a reduction in their liberal votes (43.5%; 39.5%).

Put more simply: the Supreme Court Justices and Appellate Judges appointed by Presidents Reagan, Bush and Bush vote consistent with their political views at a higher rate than previous Republican appointees, and at a higher rate than Democratic appointees. That?s what the numbers show.

Posner explains this increased politicization in judicial votes as a consequence of the emphasis Republican Presidents since Reagan have placed on ideology (replacing mainly patronage considerations) in selecting judges for appointment. To explain the less robust political voting of Democratic appointees, he suggests (a bit strangely, although perhaps correctly) that Democrats don?t have their act together compared to Republicans in vetting judges for ideology, and he also suggests that perhaps liberal judges are less committed to fighting for their liberal values.

A simpler explanation might be that Democratic judicial appointees are more committed to respecting and abiding by the law (to restraining the influence of their political views).

Full post as published by Balkinization on May 06, 2008 (boomark / email).

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