The rise of partisan judging

Now that Bush has stacked the federal appellate bench with frank partisans, time for a little bit of stacking the other way.

I’m not that old but I remember back when people didn’t count partisan majorities on the Circuit Courts of Appeal, as if they were state legislatures. That seems to be post-2001 phenomenon. Not that judging was ever free of politics, of course, but before Bush v. Gore judges seem to have been somewhat more willing to keep it in their pants rather than bloc voting along party lines and less willing to engage in procedural cheating to make sure their side had the votes.

Now Barack Obama has the chance to turn the tables. But that’s naturally a slow process.

Of course, with growing population and caseloads, there’s probably a need for a significant expansion – at least 20% – in the number of appellate judges. At least, I have no doubt that the Congress could establish a suitably respectable commission that would so determine. And then there’d be no reason not to follow that recommendation, would there?

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com