Judging Judges: Values and the Rule of Law

JUDGING JUDGES

Values and the Rule of Law

Jason E. Whitehead

BAYLOR UNIVERSITY PRESS

© 2014 by Baylor University Press

Waco, Texas 76798-7363

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Library of Congress Cataloging-in-Publication Data

Whitehead, Jason E., 1970– author.

Judging judges : values and the rule of law / Jason E. Whitehead.

253 pages cm

Includes bibliographical references and index.

ISBN 978-1-60258-525-6 (hardback : alk. paper)

1. Judicial process—United States. 2. Judicial process—Philosophy.

I. Title.

KF8775.W48 2014

347.73’14—dc23

2014001491

For Donna and Justin

who make life worth living

CONTENTS

Acknowledgments

List of Figures and Tables

Introduction

The Battle Over Judges and the Rule of Law

1Values and the Rule of Law from the Inside Out

2Judges and Formalist Values

3Judges and Good-Faith Values

4Judges and Cynical Values

5Judges and Rogue Values

Conclusion

Changing How We Judge the Judges

Appendix A

Methodological Summary

Appendix B

Interview Subjects

Appendix C

Interview Guide

Notes

Bibliography

Index

ACKNOWLEDGMENTS

This book has been gestating for a long time—at least since the late 1990s. But no matter how long the gestation period, the book would never have actually been born without a lot of inspiration and help from those who have guided me through various stages of thinking, writing, and living.

Most recently, Carey Newman at Baylor University Press believed in this book enough to take it on as his own project, and he expertly coached me through each redraft of the chapters. If there is any crispness and liveliness in the prose, Carey should get the praise. Jordan Rowan Fannin did a very thorough and professional job of pulling all the threads of the manuscript together at the end of the revision process. Diane Smith transformed my crude figures and line drawings into professional images.

With regard to the subject matter of the book, I am extremely grateful to the many judges who contributed to the project in various ways. The identities of the twenty-four judges who agreed to be interviewed are confidential, but I will always remember the kindness of each one who agreed to take time out of their busy schedule to talk to me about their life and work. I owe an even bigger debt to some other judges, for whom I had the honor of working. Associate Justice Jack L. Landau, of the Oregon Supreme Court, was my first boss after law school, back in the days when I still considered myself a critic of the rule of law. He taught me more about judging in good faith than I ever learned from a book. Magistrate Judge Andrew Wistrich, of the U.S. District Court in Los Angeles, spent many lunches with me discussing his own research into the psychology of judging. Magistrate Judges Carla Woehrle and Brian Quinn Robbins, from the same court, were always willing to sit and chat about judicial philosophy and legal history. I am also grateful to all of these latter judges for participating in a pilot study I conducted in graduate school and for making key introductions that eventually led to many of the interviews I did for this book.

Howard Gillman was the best advisor and mentor I could have hoped for when I went back to graduate school, at the University of Southern California (USC). His combination of intellectual curiosity, scholarly skill, and humanist values has been a huge inspiration. I am most grateful to him for convincing me that a phenomenology of appellate judging was not only appropriate but also absolutely essential. While there are certainly things about this book that reach beyond, and probably fall below, Dr. Gillman’s expectations, he gave me much-needed confidence that the underlying idea was sound. Other professors at USC, including Jeb Barnes, Alison Renteln, Leland Saito, and Erwin Chemerinsky, also helped immensely by commenting on early iterations of this project and making some crucial introductions to judges. The Jesse M. Unruh Institute of Politics at USC provided some crucial funding that paid for the transcription of many of the interviews. The CSU Chancellor’s Doctoral Incentive Program also came through with a forgivable loan that bought me much-needed time to focus on interviews, coding, and analysis.

Two of my former professors who left this world too soon made an especially indelible mark on my thinking and writing. Edwin Roberts showed me that political ideas were not something merely to be discussed but to be wrestled with, sweated over, and fought about. Making him proud of me is one of the biggest accomplishments of my life. Although there is much in this book with which Dr. Roberts would disagree—perhaps aggressively so—I dearly wish he had lived long enough to read it. Dallas Willard single-handedly opened up the world of continental philosophy to me. At a crucial turning point in my life, he also showed me that it was still possible to know and live the truth—not only about philosophy but also about life, love, and God. I can still hear his gentle, steady voice reminding me that [w]e were built to count, as water is made to run downhill. We are placed in a specific context to count in ways no one else does. That is our destiny.

Speaking of destiny, I thank God every day for giving me the chance to return as a professor to California State University, Long Beach (CSULB), where I studied as an undergraduate. I came here as a first-generation college student who was interested in politics but who knew next to nothing about what people did at a university. CSULB professors opened a whole world of competing ideas and theories to me and taught me to find my own voice in that world. Almost twenty years later, they gave me the chance to do the same for a new generation. Among all of my great colleagues in the CSULB Political Science Department, a few have significantly helped with this book through their advice about publication venues, book proposals, and the editorial process, including: Terri Wright, Mary Caputi, Larry George, Chuck Noble, and Ron Schmidt. My students at CSULB have also contributed to this book, often unknowingly, especially Amy Fernandez, Ryan Ashlock, Alex Lohman, Janae Knallay, John Sellers, Erin Adam, and Christian Muro. Students like these are what the job of being a professor is all about. In many ways, they have become my greatest teachers.

Reaching back a little farther, I am also grateful to all the other great teachers who have dotted my intellectual landscape over the years, especially Mike and Ina Levin, Stan Caldwell, Luellen Crooks, John Gates, and Judith Grant. When I was growing up, my teachers were virtually the only college-educated people I knew. They gave this working-class kid the crazy idea that I could become a lawyer and a professor. More significantly, they gave me the knowledge and skills that helped me succeed in those arenas.

Thanks also to the doctors who saved my life a few years back and still keep me healthy, including Robert A. Clark, Edwin Yang, Daniel Friedlich, Garrison Tong, and Joseph Hastings. Because of their diagnostic, surgical, and medicinal skill, a massive brain tumor that could have ended my life became instead a minor nuisance to be managed. Dr. Quin L. Crosbie and Dr. Stuart Halpern performed a feat just as important as saving my life: they helped me learn to live it more authentically.

In the final analysis, a book is the fruit of a lifetime of love and support whose roots reach way down to the very deepest family relationships. We are the sum of all the love that has been lavished upon us in our lives. Although I did not find out about it for forty years, one of the greatest acts of love ever done for me was by a nineteen-year-old girl who found herself pregnant, unmarried, and almost totally alone in 1970. With very little support or encouragement, she made the courageous decision to carry the pregnancy to term and to give me up for adoption. Her courage made my life, and everything else in my life, possible. She will always be my hero.

My parents, Jack and Lorraine Whitehead, also changed the course of my life by adopting and raising me. They allowed me to read my way through countless Saturday mornings and family vacations. They bought me one book in particular that is worth special mention: it was a high-gloss coffee table book about the U.S. Supreme Court with a picture of the entrance to the Supreme Court building on the cover. As I stared at the famous words above the entrance to the building, I became fascinated with the idea of Equal Justice Under Law. That fascination has never left me. I hope that my book contributes to that idea in some small measure.

I wrote the first draft of the introduction to this book through tears of grief and loss over the passing of my sister and only sibling, Kelly Martinez. More than once, as I wrote that summer, I felt her near me through songs and waking dreams. No professional success has ever made me quite as happy as the summers we spent playing and swimming, the songs we sometimes sang together in church on Sunday nights, or the spring afternoons we spent at the beach instead of in class. She was my first, and always my most loyal, friend. Nothing can ever fill the absence she left behind.

My lifelong friend, Sharyn Martinez, becomes more like a sister to me every year. She has never lost faith in me, even when there was very little evidence to bolster that faith. We have fought so many battles together and seen each other through so many heartaches and struggles that it is hard to believe we are not actually family. Yeats (and Kramer) said it best: Think where man’s glory most begins and ends, and say my glory was I had such friends.

All the Cataldos, Parkers, McRaes, and Migliaccios have become the extended family I always dreamed of having. The fact that they welcomed and accepted me as one of their own gave me the confidence I desperately needed in my early twenties. Since then, they have cheered all of my victories and comforted me in all of my losses and setbacks, including a two-thousand-mile relocation and major surgery. Always supportive and eager to help in whatever way they can: that is just the kind of people they are.

Finally, my wife, Donna, and our son, Justin—to whom the book is dedicated—have given me their unrestrained and reckless love and support. Countless times since the day we met, Donna has sacrificed her own needs and legitimate priorities in order to help me succeed. She teaches me by example every day about kindness, generosity, and thoughtfulness. Largely because of her example, I have learned about a law that is much more important than the law interpreted by judges and courts—the law of self-gift that is at the core of a meaningful life: simply put, we flourish best when we help others flourish. To the extent that I have helped my students or anyone else to flourish, it is because of Donna’s influence on me.

Our son, Justin, has barely started kindergarten as I write these words. But he teaches me every day how to laugh without restraint, to open myself up to new experiences, and to stay fascinated by small details that most people miss. My only regret about this book where Justin is concerned is that it contains no pictures of the trains he loves so much (maybe next time). At the end of every day, this tiny family remains my most precious possession in the world. The unconditional and unbreakable bond we share is compelling evidence to me of the greater love that is its source and summit—the Love that moves the sun and the other stars.

LIST OF FIGURES AND TABLES

FIGURES

1Social Practice Model of Judicial Fidelity

2Judicial Values Continuum

3Formalist Community Attitudes

4Formalist Language Attitudes

5Formalist Virtue Attitudes

6Formalist Social Practice

7Good-Faith Community Attitudes

8Good-Faith Language Attitudes

9Good-Faith Virtue Attitudes

10Good-Faith Social Practice

11Cynical Community Attitudes

12Cynical Language Attitudes

13Cynical Virtue Attitudes

14Cynical Social Practice

15Rogue Community Attitudes

16Rogue Language Attitudes

17Rogue Virtue Attitudes

18Rogue Social Practice

TABLE

1Typology of Judicial Values

Introduction

THE BATTLE OVER JUDGES

AND THE RULE OF LAW

[W]hat do we mean by the Rule of Law? Are we using a notion of determinate content to illuminate the dark corners of government and law, or are we tilting at Leviathan with only the emotive force of a cliché?

—W. Burnett Harvey, The Rule of Law in Historical Perspective, 487

When Justice John Paul Stevens retired from the Supreme Court, President Obama praised his fidelity and restraint as well as his fierce dedication to the rule of law.¹ Later that spring, when announcing his nomination of Elena Kagan as Stevens’ replacement, Obama further explained his view of what is necessary for an appellate judge² to uphold the rule of law: she must be impartial, act with restraint, have respect for precedent, and understand that a judge’s job is to interpret, not make law.³

The year before, when Obama nominated Sonia Sotomayor to the Court, he invoked the rule of law in a very similar way, insisting on the limits of the judicial role, impartial justice, and a determination to faithfully apply the law.⁴ On cue, Judge Sotomayor added, with all the strength of a religious confession: I firmly believe in the rule of law.⁵ Later, in Sotomayor’s opening statement to the Senate Judiciary Committee, she underscored her commitment to the rule of law by insisting that the law must always command the result in every case.⁶

Conservatives were predictably unhappy with Obama’s appellate nominations. Former Attorney General Edwin Meese, for instance, wondered whether Kagan was really committed to the rule of law since she had previously said the Court should try to help the disadvantaged.⁷ More recently, a conservative political blogger praised the successful defeat of one of Obama’s circuit-court nominees, arguing that the nominee’s support for basing decisions on evolving norms and social understandings could do untold damage to the rule of law.⁸ But, even while disagreeing with the nominations, conservatives seemed to share Obama’s stated view of what the rule of law requires of judges: a neutral and restrained application of the law to the facts.⁹

Arguments about the rule of law cut both ways. Republicans use the rule of law to justify their own judicial choices, and Democrats criticize those choices on the same basis. For example, during his confirmation hearings, Chief Justice Roberts famously promised to decide cases in a limited way, like a baseball umpire, who does not make the rules but only applies them.¹⁰ The baseball analogy prompted one liberal lawyer to insist that, just as the rules of baseball require umpires to exercise discretion, the rule of law requires judges to exercise political judgment.¹¹

Perhaps most famously, Justice Stevens himself played the rule-of-law card in his Bush v. Gore (2000) dissent.¹² He chided the majority for its lack of confidence in the impartiality of the Florida judges.¹³ Stevens implied that judicial impartiality was the true backbone of the rule of law.¹⁴ Thus, Stevens concluded, the real loser in Bush v. Gore was the Nation’s confidence in the judge as [the] . . . guardian of the rule of law.¹⁵

Even this small sampling of contemporary judicial controversies shows that the rule of law has become a bipartisan standard for good appellate judging and is accepted and used by both sides. In fact, the view that judges are the guardians of the rule of law goes back a long way on the Supreme Court itself. Ever since Chief Justice Marshall anointed the judiciary as the champion of a government of laws, and not of men,¹⁶ the language of other judicial opinions has followed suit.¹⁷ So have judges’ articles, books, and speeches, where invocations of the rule of law sometimes sound like overly idealistic civics lessons. When the judge jettisons self-discipline, one judge intones, the rule of law suffers.¹⁸ It is the responsibility of the judiciary, states another, to make sure that we remain a government of laws. . . . It is a weighty responsibility, but [judges] are uniquely qualified.¹⁹ Indeed, with some notable exceptions,²⁰ the view that judges are impartial and objective guardians of the rule of law appears to be the official view of the entire legal profession.²¹

These invocations of the rule of law seem to go on and on. Every time a new judge is nominated, every time a court issues a high-profile decision, every time courts are involved in some public controversy, we pull out this well-worn slogan. But the rule-of-law slogan is just as puzzling as it is ubiquitous. Although politicians, judges, and political activists invoke the rule of law all the time, they seem to have no idea what it means or how to apply it correctly to judges.

One problem lies with the ambiguity and imprecision of the manner in which the rule of law is invoked.²² On the one hand, most appeals to the rule of law seem to assume that judges must slavishly follow the letter of the law. But this assumption ignores the many cases—especially at the level of the Supreme Court—where the letter of the law is ambiguous, contradictory, or seems to require or allow judicial discretion. On the other hand, perhaps the rule of law requires judges to discern the spirit of the law by applying abstract standards such as justice, equality, or fairness. But this emphasis on the spirit of the law might give judges license to make the law whatever they want it to be within a certain scope. This judicial license seems more like the rule of judges than the rule of law. Even if a satisfactory definition could be provided, another serious problem waits in the wings. Whatever the definition, we have no systematic and rigorous way to distinguish between judges who uphold the rule of law and judges who undermine it.

The lack of a definition of the rule of law and the lack of a standard for applying it can make our national discussion of judges and court decisions demagogic. A neutral observer would be justified in concluding that the difference between good and bad judges is a matter of personal preference and that the rule of law is a mere platitude designed to disguise the preference as a principle.²³ This confusion and opportunism are unworthy of a great republic. We should either abandon our long-standing rule-of-law rhetoric, admitting that we have no standard for judges beyond our personal or political preferences, or we should get busy explaining what that standard is.

Rethinking the Rule of Law

Accurately defining and applying the rule of law requires going beneath the surface of law to the deeper values possessed by the judges who interpret it. There are two ways to consider how judges might be constrained by the law: from the outside in and from the inside out. The outside in approach requires that the judge’s external actions be bounded by the objective content or substance of the law itself. But no matter how clear and direct the law is, it cannot make judges obey it. Judges obey the law only if they feel obligated to do so. The inside out approach focuses on this obligation. It requires that the judge’s external actions be motivated by an attitude of legal fidelity. The human attitude of fidelity gives life to the otherwise dead words of the law. In short, the rule of law requires that judges have the right judicial values.

To see why a focus on judicial values is necessary, consider the following thought experiment. Imagine two judges deciding the same case involving a highly controversial issue dividing the nation—say, a case involving the constitutionality of same-sex marriage. Assume that both judges reach the same result: both decide that traditional marriage laws are unconstitutional because they violate the equal protection clause of the Fourteenth Amendment. From an external perspective their decisions are identical: both write or join persuasive opinions that make sense of the constitutional text, precedents, and the facts of the case; both were appointed by a Democratic president and confirmed by a Democratic Senate majority; and both have the same liberal political ideology.

Assume further, however, that the judges’ internal motivations are radically different. One feels bound by constitutional rules and principles and believes sincerely that the law violates them. The other feels no obligation to these rules and principles. She uses them merely to reach a result that favors her personal and political support for same-sex marriage.

Since the outcome of the decisions is the same, it might appear that both judges have followed the rule of law. However, the conclusion that both decisions are equally praiseworthy seems hollow at best and deceptive at worst. It is form over substance. Ignoring the judges’ underlying motivations and focusing only on the external legal details misses an injustice at work beneath the appearance of legality. Whatever the outward result, the first judge’s decision seems more worthy of trust than the second’s. Some might even go so far as to say that the first judge is a good judge and the second is a bad one. But the law itself is not a sufficient basis for this value judgment. Only an approach to the rule of law that takes judicial motivations seriously can make sense of the deeper reality.²⁴

The outside in view seems to be the de facto standard used by both liberals and conservatives who invoke the rule-of-law in debates over judges and court decisions. These liberals and conservatives assume a positivist definition of law as an objective fact that can be discovered in a value-free manner.²⁵ They also assume a formalist approach to judging, namely, as the search for objective, logical grounds for every decision.²⁶

But these positivist and formalist aspects of the outside in view are extremely problematic. First, much empirical evidence expressly denies that law and judicial decisions work in a positivist and formalist manner.²⁷ Instead, research shows that judges interpret ambiguous law in a manner consistent with their subjective political preferences.²⁸ Second, the outside in view fails to make sense of the particular attitudes judges must have in order for the words of the law to be effective at all. Even very clear and straightforward laws do not apply or interpret themselves. These laws require human beings who see it as their particular mission to understand and apply them fairly. This is even truer for ambiguous laws, for which judges must exercise even greater interpretive discretion.²⁹ We need a more fluid and dynamic view that takes judicial attitudes and motivations seriously without denying their political subjectivity.³⁰

The inside out view does exactly that. It acknowledges that the rules themselves do not determine judicial decisions in a heavy-handed way and that there are many instances where legal reasoning must be discretionary.³¹ But discretion need not mean that judges are unconstrained by law. If judges are motivated by an overriding attitude of legal fidelity, then they will feel obligated to deliberate and argue in distinctly legal ways, and they will strive to fit even novel decisions into existing legal frameworks.³² Indeed, a judge’s sense of legal obligation might actually provide a superior explanation for decisions in major cases and issue areas.³³ Thus, the inside out approach can provide a fuller, richer answer to the question of how judges are constrained by law.

The inside out approach can also be used to understand the precise role that judicial values play in a judge’s decision. From the outside in, judicial attitudes are seen as an observable cause of judicial decisions. Although most judges still frame their roles in this way,³⁴ the empirical evidence shows that there is no measurable causal link between law and case outcomes.³⁵ So perhaps judges are deluded or confused about the so-called true meaning of their actions.³⁶ The outside in approach to judicial values thus assumes that the truth is captured entirely by objective facts.

But judicial values cannot be understood adequately as independent variables that must be plugged into a causal equation. The views of judges, just like the views of other political and legal actors, are part of a complex and dynamic interaction between the individual and society.³⁷ Consequently, focusing on judicial values requires attention to how judicial attitudes about law are shaped by community norms, expectations, and practices.

Judges themselves are in the best position to articulate their own values and to examine their own orientation to the values of the community. Thus, an inside out approach needs to focus on the meaning judges ascribe to their own actions.³⁸ This meaning arises out of the judge’s understanding of their professional community and their individual role in it, the language they use to understand and express their ideas, and the norms they attempt to follow. In short, understanding the rule of law requires understanding the entire judicial way of life.³⁹

A High-Stakes Gamble

Due to the self-serving and simplistic way judges and courts are ordinarily discussed, skeptics and critics might scoff at the idea that the rule of law has any substance. Because the definition and application of the rule of law is so confused and imprecise, and because legal interpretation seems so subjective, the language of the rule of law can seem only to mask political power.⁴⁰ Perhaps legal reasoning is not a technique for arriving at the right answers but only a post hoc justification for answers already reached on social and political grounds.⁴¹ If these claims are true, then the long-standing and bipartisan belief that judges should be the guardians of the rule of law is either a naive myth or a cynical sham.⁴²

Others might question the practical relevance of the rule of law. Perhaps, like many other social and political ideals, such as democracy, justice, and equality, the rule of law is an inherently ambiguous and essentially contested idea that is not amenable to precise definition.⁴³ Perhaps the rule of law is simply a convenient stand-in for the attitudes and actions we wish to praise or criticize based on our subjective preferences. If these claims are true, then trying to get clearer about the definition and application of the rule of law is a fool’s errand.

Skepticism about the rule of law tracks a more widespread societal disenchantment with the judiciary. Of course, perennial battles over which judges and court decisions really uphold the rule of law show that the ideal still has some political traction. But this is a double-edged sword. People appear to believe both that judges should decide cases objectively or at least fairly and that, in practice, many judicial decisions are based on nothing more than politics.⁴⁴

This trend toward disenchantment with the judiciary and the rule of law is ominous. Using judicial review to rein in the excesses of majority will has long been seen as one of the American judiciary’s primary roles.⁴⁵ But if the rule of law is a myth or a sham, then majority tyranny lurks in the wings.⁴⁶ Relatedly, trashing the rule of law could contribute to a form of political and social nihilism that trusts no social ideal or value because all are imperfect.⁴⁷ The public legitimacy of court decisions is based on confidence that judges are not just politicians in robes but principled and sincere interpreters of law.⁴⁸ When people lack this confidence—when they think that judges are merely imposing their personal preferences rather than interpreting the law—they are less willing to use the courts or comply with court rulings.⁴⁹ And it may not stop there: Skepticism that begins with the judiciary may ultimately spread, leading the citizenry to doubt the trustworthiness of government in general.⁵⁰

In short, the urge to scrap the rule of law because it is not observed in the way we like is counterproductive at best and dangerous at worst. The same legal ideals that sometimes promote injustice are also necessary and useful in fighting that injustice.⁵¹ Americans have always seen law and judging as almost sacred enterprises.⁵² Given this reverence, debunking and abandoning the mythic status of the rule of law may very well deprive the nation of the cognitive and rhetorical tools it needs to bring about necessary political and legal changes.⁵³

The values of judges are a key piece of the rule-of-law enterprise, but so are the values of citizens and scholars. An overly skeptical or nihilistic approach toward the rule of law might very well become a self-fulfilling prophecy. Perhaps one reason for the public’s disenchantment with law and the courts is that legal and political elites themselves have increasingly treated law not as a respected and honored end but as a means to acquire desirable social and political ends.⁵⁴ The manner in which the rule of law is debated and discussed can move us toward either a virtuous sense of accountability to the rules we have chosen to live by or a vicious sense of disrespect for those rules. Either way, values are the key to the enterprise.

Once the right and wrong values become clear, we can see the rule of law not as a platitude or a cliché but as a precious and hard-won cultural treasure. Of course, the role of judges in upholding the rule of law should be critically analyzed and reformed when necessary. But that role must first be understood.

1

VALUES AND THE RULE OF LAW

FROM THE INSIDE OUT

What we mean by rule is a human, ethical-spiritual attitude that is, above all, deeply conscious of how