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Posted at 4:13 PM ET, 12/16/2010

Judges, ideology and partisanship

By Ruth Marcus

I'm hoping for the moment when a federal judge picked by a Democratic president strikes down the health-care law. Or when a Republican-appointed judge upholds it.

Either way. Because the current lineup of decisions, in which two Democratic-nominated judges have ruled in favor of the law, one Republican against, is not healthy for the judiciary or the democratic process.

It is facile to think of judges as umpires robotically calling balls and strikes. But it is also dangerous to think of judges as players on a particular team, still wearing uniforms under their robes.

The reality is more complex. Judges come to the bench with particular understandings of the role of courts and the reach of the Constitution. Democratic presidents tend to pick judges with a more expansive understanding of constitutional provisions and a broader conception of the federal government's role. Republican presidents tend the opposite way.

And let's not kid ourselves: Getting to be a federal judge is in part a political exercise. It is the rare judicial nominee who arrives on the bench with no connection to the world of politics.

So two phenomena coexist in inevitable tension with each other:

On the one hand, it would be surprising if the judicial tally so far had come out in a different direction on the constitutionality of the individual health-insurance mandate. A judge nominated by a Democratic president is more likely than a Republican nominee to view the Commerce Clause as giving the federal government broad regulatory powers. Especially in a case like this, where the constitutional sketchbook has not been completely filled in by the Supreme Court, judges make choices reflecting these differing conceptions.

At the same time, it would be disturbing if judges were to automatically rule -- or if the public were to assume that judges automatically rule -- for their team. I happen to believe that the individual mandate passes constitutional muster, but I also believe a credible argument can be made the other way.

Partisans on both sides view the situation through a more conspiratorial lens. Consider the statement issued by Nan Aron of the liberal Alliance for Justice after Monday's ruling finding the individual mandate unconstitutional:

If anyone needed proof that judges matter and that the current battle in the Senate over judicial nominations is a fight worth having, they need look no farther than today's ruling by Judge Henry Hudson, a former conservative Republican politician from Virginia, on a lawsuit filed by a current conservative Republican politician from Virginia, state Attorney General Kenneth T. Cuccinelli.

I agree with the first half of this sentence -- judges, and nomination battles, matter -- but I dissent from the cynical reductionism of the second half. Hudson's ruling was wrong, but he was hardly doing Cuccinelli's bidding. In fact, he declined the Virginia attorney general's request to strike down the law in its entirety.

Some judges, even some federal judges, are partisan hacks. Yet judges ought to be afforded the presumption of non-hackery -- at least until proved otherwise. Which is why I think it was a mistake for Hudson to retain an ownership stake, valued at between $15,000 and $50,000, in a Republican political consulting firm, Campaign Solutions. Even worse, Cuccinelli has been a client of Campaign Solutions.

Note to Judge Hudson: Going on the bench means cutting ties with the team.

A point, by the way, that Justice Antonin Scalia might also consider. Scalia has accepted an invitation from Minnesota Republican Rep. Michele Bachmann to address the conservative Tea Party Caucus next month.

This is a terrible idea. Justices frequently address groups with ideological viewpoints -- the conservative Federalist Society, the liberal American Constitution Society. I have no particular problem with such appearances, although it would be wise for justices not to limit themselves to organizations on a single side of the spectrum.

But there is a difference between ideological and partisan. Justices don't belong at partisan gatherings, period. One illustration of why is the uncomfortable fact that Bachmann has filed a friend of the court brief arguing that the health-care law is unconstitutional.

That issue is headed, inevitably, for the high court, where, I suspect, Scalia will share Bachmann's assessment. The justice's Tea Party excursion fuels unfortunate suspicions that his vote, if it turns out that way, will be driven by partisanship. Because the truth, I think, would be less sinister: his understanding of the Constitution is flawed.

By Ruth Marcus  | December 16, 2010; 4:13 PM ET
Categories:  Marcus  | Tags:  Ruth Marcus  
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Ruth Marcus's comments here also provide a shining example of the partisan interpretations of decisions. She states that Hudson's decision is wrong, "but he was hardly doing Cuccinelli's bidding." You believe that? Fine.
But is it really wrong, or partisan, or even unconsitutional to conclude that citizens can be compelled by threat to participate in specific commerce? We view the judges with our own partisan lenses and this is what renders them 'team members' or not. In other words, zealots of either side cannot view constitutionality without making a politically partisan judgment. Is Hudson's decision really too conservative? Or are your lenses too partisan to see that your position is unconstitutional?

Posted by: slatt321 | December 16, 2010 8:44 PM | Report abuse

Oh yeah major brands always give out samples on their products, search online for "123 Get Samples" I just got mine. CC not required.

Posted by: juliasmithy | December 16, 2010 11:27 PM | Report abuse

People should never forget that real health depends how well you take care of yourself and not what health insurance you carry but I agree health insurance is important for every one. Search "Wise Health Insurance" online for dollar a day insurance plans.

Posted by: patewart | December 17, 2010 12:02 AM | Report abuse

Today we want federal judges to rule the way we want them. Republicans appoint judges who they believe will rule the way the want and Democrats appoint judges who they believe will rule the way the want. At the same time, congress ducks issue after issue in the hopes that the federal court system will deal with the problem and they will not get blowback - lose an election. If anyone believes as I do that the federal judiciary is just another part of the elected branch of the government, I have just given you my reasons for putting it there. The idea that we have an independent judiciary is pure fantasy and the idea that anyone will get a fair shake in the federal judiciary is simply false.

Posted by: jeffreed | December 17, 2010 8:16 AM | Report abuse

"That issue is headed, inevitably, for the high court, where, I suspect, Scalia will share Bachmann's assessment. The justice's Tea Party excursion fuels unfortunate suspicions that his vote, if it turns out that way, will be driven by partisanship. Because the truth, I think, would be less sinister: his understanding of the Constitution is flawed."



I'm hard-pressed to think of a liberal justice who is as willing to put his or her ideology aside as Scalia is.

Scalia voted to uphold flag-burning in the name of the First Amendment.

Can any liberal justice claim to have voted in such opposition to their personal policy views?

And while you don't raise the issue, I've always wondered: if the "conservative" justices (including Kennedy and O'Connor) who voted in favor of Bush in Bush v. Gore were "in the tank" for GWB, then isn't it true that the justices who voted in favor of Gore were in the tank for him? You can't have it both ways.

Posted by: Hk45 | December 17, 2010 8:22 AM | Report abuse

The most partisan justice of the Supreme Court in history was Chief Justice John Marshall who was appointed by John Adams in the last days of his administration. He continued as Secretary of State after being sworn on the Court. He continued the federalist agenda until his death. Adams was the last Federalist President and the Federalist party became a local party primarily in New England, but Marshall lived on--making his name by rejecting a case before it could be heard so as not to be embarrassed.
The skewing of constitutional understanding is not a province wholly of the "right." The understanding of the commerce clause as a grant of general power is not new, but the idea that the clause supersedes amendments to the constitution which limit governmental powers is much the product of William O. Douglas and William J. Brennan, both of whom were conscious of the meaning of their decisions.

Posted by: JarlWolf | December 17, 2010 9:18 AM | Report abuse

There is far more going on here than political partizanship by judges. The fact is that Democrats have a very different view of the Constitution and the role of government than Republicans. Republicans believe that the Founders created the Constitution to limit the role of small and divided government in the daily life of Americans. They realized that governments have a way of forever expanding and when they do liberty receedes. The Dems on the other hand believe in a large and powerfull Federal government, which is in direct contrast with what the Founders had in mind. It seems like Americans are not like Europeans (maybe that is why they left Europe) and are not willing to give up liberty for the "common good."

Posted by: acahorvath | December 17, 2010 10:39 AM | Report abuse

I'm sorry, but that horse left the stable ten years ago with Bush v Gore. Shorter post: "I'm shocked -- SHOCKED -- that there's partisanship going on here."

Now, where in the Constitution do you find any indication that the writers expected business organizations to have the same rights as persons? There's the difference between strict and loose construction, and it isn't the liberals who have been playing fast and loose with the Constitution of late.

Posted by: DaveinNorthridge | December 17, 2010 12:12 PM | Report abuse

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