May 26, 2021 - University of Houston Law Center Dean Leonard M. Baynes led a discussion among several distinguished jurists during the American Bar Association's 2021 Virtual Litigation Section Annual Conference last week.
The panel: "Judicial Philosophy and Divining Rods: Predicting How a Judge Will Rule," also included:
"There may be a concern that judges may be using their judicial philosophy in deciding cases, that they may not be following the law, and that litigants may know or predict in advance the results of a matter just based on who the judge is," Baynes said in his opening remarks.
"Clearly judges need to be learned guardians of our law and to have the respect of all our citizens. They are also representatives of the law to our nation. But the hint behind the title of this panel probably comes from a place in which the confirmation process for judges, particularly Supreme Court justices, has become incredibly polarized."
Baynes also discussed how the selection of who becomes a federal judge has narrowed. Citing a 2017 Congressional Research Service report, Baynes noted that more than 46 percent of active federal circuit court judges were either serving in private practice or as a state or local judge when they were appointed to the federal bench. Among active district court judges, nearly 66 percent had similar prior work experiences.
"To be on the Supreme Court, the eye of the needle has become even more narrow," Baynes said. "Not only does a jurist have to have prior federal appellate experience and come from an elite law school, but in fact, the last three Supreme Court nominees were also former Supreme Court law clerks further narrowing the pool and the qualifications for appointment to our nation’s highest court. “
"So, when judges from similar backgrounds resolve a dispute, it may be informed by their educational background and training. If there is such a narrow range of educational and professional backgrounds on the bench, there may be little difference in approaching problems or the judges may decide a case from a purely abstract way that does not take into account the practicalities of the situation."
Among the topics Baynes posed to the panelists were public trust in the judiciary, the question of if the rule of law should be static or should it evolve and the role of the judiciary in determining an answer to the question.
In his comments Brasher said that predictability in judging is a valuable asset for members of the bench. However, individual judges being unwilling to change their minds when presented with new arguments or facts, should be avoided in the judiciary.
"When I say predictability is an important feature of the legal system that judges should strive for, what I mean is the ability of an actor in the relevant legal system to predict with some level of confidence what a judge will do when they are presented with certain facts or legal arguments," Brasher said. "This is the kind of predictability that allows people to make informed decisions and in the context of litigation it makes it possible for people to make decisions about whether they want to settle and what kind of arguments they want to make."
Costa expressed his concern for a judiciary that has become increasingly polarized.
"Ideological judging and strong philosophies can be a problem," he said. "For example, if you have a judge who has a philosophy that plaintiffs should always win, and then you have another judge down the hall in the same courthouse whose philosophy is civil defendants should always win. Each of those judges are highly predictable, and you know with 100 percent certainty how the case is going to come out. But the system as a whole is highly unpredictable because the outcome is going to turn entirely on what judge you get in that case.”
Cole's commentary discussed how diversity can make an impact on judicial decision making.
"Some parts of judicial decision making should be predictable," Cole said. "For instance, that courts will faithfully follow Constitutional provisions, statutory mandates and governing precedent in most cases judges applying precedent will arrive at the same conclusion.
"But of course, judicial decision making is not perfectly predictable. If it were, I suppose we would use algorithms and artificial intelligence to decide issues that come before the judges. But we know there is a human element to judging. Quoting from an article by Daniel Root: 'Having a group of judges from a variety of backgrounds, including underserved or historically underrepresented communities, has a positive impact on the decision making process of federal judicial panels and the Supreme Court.'"