Politics & Policy

Merit-Based Judging

Understanding the judiciary.

In observing the judicial-confirmation process as a member of the Senate Judiciary Committee, nothing has been more surprising than the depiction of the role judges play in society. It is disconcerting each time a senator asks a judicial nominee whose “side” they will be on once they assume the bench. On the side of workers? Women? The disabled?

#ad#Strange questions to ask of judges. As a justice of the Texas supreme court for seven years, if asked who I might “side” with, the response would have been: I would “side” where legal claims had merit.

This question implies that the art of judging is little more than reading the caption of the case and deciding which party merits greater sympathy. This is a terrible misunderstanding, and misrepresentation of what judges do. Judges interpret and apply neutral legal principles without regard to the parties involved. When interpreting the words of a statute, it does not matter whether the plaintiff is white or the defendant is a corporation–this is why Lady Justice has always been blindfolded.

But that is no longer how the responsibility of a judge is represented, and nothing highlights this better than the rhetoric used in the Supreme Court nomination process. The president’s nominee, Judge Samuel Alito, is criticized by his opponents nearly every day for not showing sufficient “sensitivity” to certain parties that have appeared before him in court. His opponents point to various cases in which he has ruled against a female plaintiff, or a disabled plaintiff, and charge that he is, therefore somehow insensitive to such persons. In fact, several hard-left groups declared their opposition to his nomination simply because he didn’t regularly “side” with their constituencies.

Every judge, though, whether appointed by a Democrat or a Republican, has decided cases “against” every conceivable type of plaintiff. But good judges do so based on the merits of the case, not the merits of the person appearing before the bench.

If, then, judges are not results-oriented, why are they painted as such? A measure of responsibility for this characterization lays with the press. Many Americans believe that judges are results-oriented because that is what they are being told.

A perfect example is the Supreme Court’s recent decision in Lincoln Property v. Roche. The case involved a dry civil-procedure question about the jurisdiction of federal courts. The case did not turn in anyway whatsoever on whom the involved parties were. The decision, issued by Justice Ginsburg, was unanimous. In fact, it could easily have been written in exactly the same manner had the lawyers simply referred to their clients as “Party A” or “Party B”. Nonetheless, the headline the next day read: “Justices side with landlord over tenants.”

Whether out of a misunderstanding as to what courts really do, or perhaps a simple lack of curiosity, the media often summarize cases in a win/lose fashion. The American people, then, are understandably left with the impression that this is the sum of a case’s parts. Is it, therefore, surprising that their elected representatives perpetuate this paradigm?

Another recent example further demonstrates this point. There was a story regarding Judge Alito’s nomination in a national news service last month that claimed Judge Alito was results oriented (“results do matter to him”) because he “seldom” sided with criminal defendants, illegal immigrants, or employment-discrimination plaintiffs. The analysis ignored the legal claims in each case. Instead, readers were offered only a simple win-lose tally based on plaintiffs’ race or gender.

More research and less cynicism was clearly in order. It was proposed that Judge Alito was oriented against employment-discrimination plaintiffs because he voted in their favor on “only” 4 of 18 occasions. But this is hardly an extraordinary record. What the article failed to report was that employment discrimination claims are notoriously unsuccessful in federal court. A 2003 study of employment discrimination claims conducted by three law professors bears that out: among all federal appeals court judges, employment discrimination plaintiffs prevailed in only 13 percent of cases. By this standard, Judge Alito’s record of 4 out of 18 cases–22 percent–could be seen as particularly generous.

There is a profound need in this country for an honest depiction of the judicial process. While achieving such a process is difficult, one positive step would be to televise court proceedings, including those that take place within the four walls of the Supreme Court. The American people should be afforded the opportunity to reference the legal process directly, to see for themselves how courts decide cases. Perhaps then we will move toward a more accurate understanding of the role of a judge in a democracy.

The Honorable John Cornyn (R., Texas) is an United States senator from Texas.

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