Judges and Politics

In theory, the judiciary is the nonpolitical branch of government. In practice, politics - or at least political philosophy - can figure heavily in both the appointment process and in the decisions handed down by particular courts.

Fore example, current efforts by Republicans in Congress would limit President Clinton's ability to fill openings on the federal bench. Senate Judiciary Committee chairman Orrin Hatch (R) of Utah controls the pace at which judicial nominees are considered. So far this year, the pace is zero.

Senator Hatch is displeased with the president, who hasn't nominated a Utah state official he favors (and environmentalists oppose). But Hatch and his GOP colleagues are in no hurry to process Clinton nominees in any case.

The president has already filled 306 federal judgeships. Ronald Reagan filled a record 385. The judges appointed in the Reagan-Bush years generally inclined toward a conservative philosophy, marked by judicial restraint and deference to the states. Clinton's appointees are harder to peg. Many have been judicial moderates, without clear liberal leanings. So it may not be easy to assess the long-term Clinton legacy, even if Senate Judiciary Committee doors open again and more appointees move through.

That doesn't mean the federal bench lacks philosophical tension. Certain federal circuits retain a liberal reputation, while others veer to the right. The prime example of the latter is the appellate court of the Fourth Circuit, which stretches from Maryland to the Carolinas. Its conservative majority has relentlessly turned down death-row appeals, for example, and upheld state prerogatives. The West Coast's Ninth Circuit, by contrast, is seen as a liberal bastion. Conservatives in Congress want to split that circuit to reduce its judges' influence.

The tug and pull of politics and ideology thus inexorably enter in - as they have through the republic's history. Presidents choose nominees from a mix of philosophical and political motives. Senate confirmation adds another layer of politics, but it can also help identify questionable choices. The same goes for judicial ratings offered by the American Bar Association and others.

Without question, different judges and circuits may come to different decisions on similar facts. The Supreme Court, with its own endlessly analyzed philosophical make-up, is there to resolve conflicts in lower-court rulings.

Does all this add up to uneven justice? As a rule, no. Judges with divergent philosophies can still share a commitment to fairness and basic rights. Most of all, they - like the public they serve - share a reverence for an independent federal judiciary critical to the functioning of American democracy. That, ultimately, is the best protection against encroaching political bias.

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