The Political Judiciary

Both Baum (2014) and Tushnet (2013) examine the political scrutiny, influence and strategy that ultimately goes into the selection of a Supreme Court Justice, while Huber and Gordon (2004) analyze whether the political cycle, where judges must systematically face reelection, interferes with sentencing tendencies among judges who wish to appear tough on crime to their constituents. While justice is ideally blind, which would include blindness toward political affiliation or motive, the concept of a political judiciary is nevertheless present in our legal system. A political judiciary is a justice system that is inherently influenced by politics because judges essentially become political figures when they either run for election or are appointed as a nominee.

The major themes present in the Baum (2014) and Tushnet (2013) readings are the political maneuvering and scrutiny facing Supreme Court Justice nominees and the political ramifications of having Justices nominated based solely on political affiliation. Baum describes the process in which Justices are nominated: they are officially selected for nomination only when a vacancy on the Supreme Court occurs; as they are nominated by the President, the general theory is that the President will select a nominee who shares similar political ideologies as the party the President belongs to. Once nominated, the nominee must often face challenges to the nomination from the opposing political party. This scrutiny can be extreme, as the nominee is questioned and researched, and every possible point of controversy surrounding a candidate will come to light. Thus, the process of selecting a Supreme Court Justice is invariably a political battle from the start. 

Tushnet (2013) examines the specific manner in which the Roberts Court, which is the current makeup of the Supreme Court, was formed through political maneuvering by the George W. Bush administration when it became evident that Judge Rehnquist would soon be retiring. The reading describes a series of stratagems and considerations that when into the nomination process for Roberts, who was essentially tested for his allegiance to conservative values in several areas, from abortion to his views on the war on terror, before the nomination became official. However, with all this politicization, the question remains: if this is how our justices are nominated, is our justice system truly blind to political affiliation?

Gordon (2004) explores a different aspect of the political judiciary: the tendency of judges to change their sentencing behavior during election season. Gordon provides evidence that judges will often face more scrutiny and criticism for under-sentencing (or giving a sentence that would be considered lenient or light in relation to the crime committed), while cases that are over-sentenced do not face the same scrutiny or potential community ire. The result of this phenomenon is that judges up for re-election will often change their sentencing patterns to err on the side of over-sentencing, rather than under-sentencing. However, the obvious and immediate concern over this change in sentencing behaviors around election season is the negative impact this may have on any defendant who happens to face trial near a judge's re-election campaign. To the defendant, the judge's campaign efforts are irrelevant, yet Gordon identifies how this tendency of judges to tighten sentencing may unduly be causing these defendants to face stiffer penalties and serve longer jail terms than would normally be considered appropriate.

When taken in context, these readings indicate that the very structure of our judicial system, which requires either nominations or elections for judges to preside, is inherently political; while justice should ideally be blind, our current judicial system remains tainted by political influence.

References

Baum, L. (2016). The Supreme Court. New York: CQ Press.

Huber, G., & Gordon, C. (2004). Accountability and coercion: Is justice blind when it runs for office? American Journal of Political Science 48(2), 247-263.

Tushnet, M. (2013). In the balance: Law and politics on the Roberts court. New York: W.W. Norton & Co.