Retired Seventh Circuit Judge Richard Posner often referred to a judge’s past, with all that that entails, as his or her “priors.”
He hardly meant a judge’s rap sheet of sorts. Rather, he meant a collection, even a collage, of all of a judge’s learning, thinking and experience brought to the bench after taking the oath — whether or not that thinking and experience were in the public interest.
Accordingly, Posner, the greatest philosopher of the judicial process since Benjamin Cardozo himself, iterated that judges invariably bring to the table things that, judicial objectivity suggests, they should ideally discard on the up ramp to their special seats of authority. This, notwithstanding the impossibility of doing so.
Undeniably, a judge’s priors might actually be as disturbingly momentous as Justice Hugo Black’s “prior” membership in the Ku Klux Klan, long before FDR nominated him to the Supreme Court. There, ironically, he became its most liberal justice for a time.
Notably, President Biden and former President Trump before him have both unambiguously used their nominating authority to select judges to fulfill aspects of their political agendas. What used to be viewed as a negative — the abhorrent “litmus test” on how judges will rule on a particular issue — is behind us.
Actually, there’s no need for it. Judicial candidates today have typically written or spoken sufficiently on such issues for the president to know going into the nominating process what the candidate thinks and how they may decide on core issues of concern. And where the “prior” is based on the candidate’s religion, race, ethnicity or gender identity, the president will typically — albeit not necessarily always — have a great insight into where the confirmed judge or justice will come out. In Trump’s case, since about half of his nominees were members of The Federalist Society, he was largely assured of their “politics,” if you will. The interview process was largely a formality.
That, though, is not the whole of it. There is of course the question of whether a corporate lawyer, for instance, can later as a judge fairly consider a class action lawsuit brought by a plaintiff against a corporation. Can a career death penalty prosecutor abandon his reflexive view that death sentences are warranted when he comes to sit on such cases? Or can a judge who had been general counsel to an anti-abortion lobby treat an abortion rights litigation with total objectivity?
By the same token, can a judge rule in favor of a gay rights lawsuit even if his background and prior career reveal a strong opposition to gay marriage? Can a progressive Black judge leave behind her “priors” when dealing with cases having to do with racial issues such as discrimination?
A litigant will of course have questions about a judge’s ability, or even willingness, to put to the side what might appear to be his or her predispositions. In truth, however, there exist vital precedents that reveal the predictability of a judge’s judging is not automatic at all.
We choose examples of Supreme Court nominees as they are better known. President Dwight Eisenhower nominated the Republican governor of California, Earl Warren, (who had strongly favored the Japanese Exclusion from the West Coast during World War II) as chief justice of the Supreme Court. Warren, surprisingly, became a great liberal on the court. Eisenhower later lamented that nominating Warren was “the biggest damn fool mistake I ever made.”
Whether or not Eisenhower’s negative assessment of Warren was accurate, his exemplar presents great proof that a naïve belief in easy predictability of how a judge may rule is deeply flawed. The Supreme Court pathways of Justices John Paul Stevens, Sandra Day O’Connor and David H. Souter provide added proof that, whether or not the judge changes in terms of his or her beliefs or philosophy regarding society, how he or she will choose to judge controversial cases may remain impervious to easy predictability.
It’s worth noting that the manner in which people change (or remain the same) during the continuums of their personal lives cannot meaningfully be compared to how they change (or remain the same) as judges, once they become judges. Given the nature of their obligations to their oaths, judges may simply have to place to the side everything that moved them before the swearing-in experience. Some do it better (or worse) than others. Chief Justice John Roberts and Justice Brett Kavanaugh, for example, have occasionally shown that capacity.
The incomparable Cardozo, though, said it best: “They [judges] do not stand on these chill and distant heights; and we shall not help the cause of truth by acting and speaking as if they do. The great tides and currents which engulf the rest of men, do not turn aside in their course, and pass the judges by.”
Just look at Justices Warren, Black, O’Connor, Souter and Stevens. You can almost see the tides and currents reflecting where society was flowing at the time, pushing at them in the years that followed after they donned their robes. Would even they themselves, as younger men and women, have imagined where they might ultimately turn out on the compelling issues of the day?
That said, can we, or even a nominating president, be confident in our own expectations of the judges being nominated? Choosing members of the judiciary expecting that their judgments are totally predictable is simply a bad mistake. One should never conflate “predictable” with “aspirational.”
The Supreme Court is under considerable attack today, given its currently polarized state. It’s up to the justices themselves to consider each case on the merits, putting aside to the extent possible their individual priors, basing their thinking and decision-making on the applicable law itself – each of them.
Hard to do indeed, but certainly something that will ultimately pay great dividends for the body politic as a whole.
Joel Cohen, who practices law at Stroock & Stroock & Lavan in New York, is a former member of the New York State Judicial Conduct Commission. He is the author of “ Blindfolds Off: Judges On How They Decide” (2014) and teaches about judging at both Fordham and Cardozo Law Schools.