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"Merit-Based Judging"

Senator John Cornyn has an excellent piece in NRO decrying the media tendency to view judicial decision-making as results-oriented and akin to the legislative process.

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." [...]

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.

Alas, too often, judicial decision-making is results-oriented. But one would hope that the press would recognize that there is a faction out there trying to restore judicial honesty to the system. (As Walter has noted, pro-Alito advocates on the right wing aren't entirely free from blame on this issue.)

I had an interesting example of this distortion occur to me. When Alito was first nominated, I gave a lengthy interview to Forbes magazine about Alito's record. Daniel Fisher asked me whether I was concerned that Alito might, as a "movement conservative," join Scalia and Thomas in opposing constitutional limits on punitive damages. I took the position that, even if Alito were to rule against the BMW v. Gore standard, business is far better off with a judicial system full of Alitos that believe in the limits of judicial power and understand the economic realities of business in a litigation environment. I made the mistake of concluding with an eminently quotable soundbite: "All in all, business wins," meaning the positive effects of merit-based judging combined with an understanding how an opinion can affect more than just the parties before it outweigh the possible loss of a business-friendly ruling here or there.

This has been taken by some journalists and Professor Hoffman to mean that I think Alito will rule in favor of business reflexively. I don't think that, and his record demonstrates that he wouldn't. But I think business is better off in the long run with a judge and judiciary that decides cases on the merits and has an understanding of the second-order effects and consequences of their decisions than the appointment of a hack judge who makes his or her decisions based on the identity of the parties in the caption. If one appoints the latter type of judge, one has to acknowledge the legitimacy of the hack judges on the other side who reflexively rule in favor of plaintiffs, and neither type is good for the justice system.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.