Interesting essay by Howard Bashman regarding U.S. Senators’ tendency to focus on the personal views of nominees to the U.S. Courts of Appeals. Bashman argues that the U.S. Courts of Appeals tend to deal more with abstract, intellectual matters, and rarely confront cases presenting social or political issues. As a result, it is more important to worry about whether the nominee has the intellectual ability and sound work ethic required to do an outstanding job.
I think the article has some good points to make, especially for non-lawyers. But Bashman qualifies his thesis in a significant way. In arguing that personal views make no difference, Bashman concedes that this is true only if those views “play no role whatsoever in the decision of an appellate case.” This, however, is the eternal problem: knowing when nominees really will commit to keeping their personal feelings separate from their judging. If they can’t, then their personal feelings suddenly become much more important than their intellectual ability — and they are unqualified to be judges at any level: trial, appellate, or the Supreme Court.
And when they can’t put their personal feelings aside — as in notorious cases such as that of Stephen Reinhardt of the Ninth Circuit Court of Appeals — it can be a really big problem, even on the Courts of Appeal. The reason is that the federal Courts of Appeal are (practically speaking) the courts of last resort for virtually all litigants in the federal system. The Supreme Court gets to choose which cases it hears — and it doesn’t choose many. According to Chief Justice Rehnquist’s Year-End Report, the Supreme Court issued only 76 signed opinions last term. By way of comparison, in 2002, a total of 57,555 appeals were filed in the Courts of Appeal!
What this means is, if you live in California or one of the other western states, your case will almost certainly go no further than the court on which Stephen Reinhardt sits. That is why he doesn’t care about the fact that he gets reversed more than any other federal appellate judge. As Reinhardt says: “We deal with a lot of important cases. Some of them may get reversed, others don’t, and we can’t worry about that.” In other words, they can’t reverse me on everything!
That’s one reason why Senators do have to care about the Courts of Appeal to some degree.