05 December 2004

They Never Learn…

One of the major differences between liberal politicians and conservative politicians (that is, those who seek and obtain political office, including all too often judicial seats) in this country over the last thirty years has been willingness to learn; to accept that one's preferences are not matters of law, natural or otherwise; in short, to conform idealism to reality. Admittedly, there may be far too few liberal politicians any more to constitute a statistically acceptable sample! (What passes for "liberal" among the politicians in this country is better described as "left-moderate".) The difference that I've noted is this: The liberal politicians are more likely to adjust both tactics and state policy preferences to "reality" than are hardcore conservative politicians. Neither group is likely enough to do so, let alone even consider the possibility that the other guy just might be right on the merits regardless of ideology.

Thus, the NYT missed an opportunity. Adam Liptak and Ralph Blumenthal published a well-considered piece today on Texas death-penalty cases in the Supreme Court, <SARCASM> The people who most need to understand it, though, will dismiss it as the product of a "New York sense of humor." </SARCASM> The key passage is buried in the middle of the article:

Other courts make essentially all their death penalty decisions available for formal publication; in recent years, the Fifth Circuit has published only 18 percent of such decisions. And its decisions were on average half the length of capital decisions from other federal appeals courts.

The missed opportunity is right here. Not only is the Fifth Circuit's jurisprudence coming under fire at the Supreme Court… but the circuit's publication practices inherently harm the interests of everyone involved. Death is so serious a matter that all decisions should be published, both out of respect for the victims and prosecutors and out of fairness to all on (or potentially on) Death Row. Think about it for a moment: As the family member of a victim, what does it say that a court wouldn't even "publish" an opinion on "my" case? Even a frivolous appeal can be dismissed formally, with a cogent explanation of why it's frivolous.

I'm pretty tired of the "we have too many cases to publish everything" excuse. Leaving aside just how much additional effort it takes to write "for publication" at the top of an opinion, what this really implies is that the court(s) in question is/are not using their internal resources effectively. There is no reason whatsoever that an appeals court, particularly when the opinion below was the subject of a written opinion, cannot state:

For the reasons stated in the opinion below at 922-24, the petitioner's objections fail. Affirmed.

and append the opinion in question, or at least the relevant part thereof. If, on the other hand, the reasoning differs from that of the court(s) below, or must resolve a conflict between courts below (as in a habeas petition), doesn't that automatically counsel for a full, considered, published opinion?

Of course, this doesn't even begin to touch the problem of the Fourth Circuit, which I have commented upon previously on several occasions. But that is beyond the scope of Liptak and Blumenthal's well-considered article. And it is beyond the scope of this entry. My "ideological" point is this: That judges on other courts, particularly those deemed "liberal," are either explicit in continuing to vote and justify their consciences or accepting of the "rule of law" imposed by higher courts. This is especially true of that "paragon" of liberalism, the Ninth Circuit (which is neither liberal nor much of a paragon of anything). I finally did a count of the reversal rate on total petitions, not just cases accepted for review; and it turns out that the Fourth Circuit had the highest reversal rate, followed by the Federal Circuit, and the Ninth Circuit was smack in the middle. The reversal rate on petitions granted follows as much from the congestion in the district courts below as from anything else; the more congested the district courts, the later significant issues will reach the appellate court, giving a greater chance for a circuit split that will more likely result in Supreme Court review. But that is, so far, inferential; I don't have the time or resources to study it in anything like adequate detail.

I guess what I'm saying is that conservative politicians tend to be more intransigient than are liberal politicians. Not conservatives and liberals as a whole—I've known a few Maoists, etc. in my time!—but those attracted enough to power and realpolitik to seek or hold office.