UPDATE: I'm moving this post (from 9/17/03) to the top, given the latest brouhaha about the judicial confirmation process. The Democrats have approved 168 of Bush's 172 nominees; that's to their lasting shame. An honest, i.e. legal realist, appreciation of what appellate courts actually do, suggests that they ought to be using the filibuster a lot more.
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So I am asked by a reader of the preceding post. I don't find blogs work too well as scholarly fora, so I refer interested readers to my essay in the forthcoming Blackwell Guide to Philosophy of Law on "American Legal Realism" for a scholarly answer. (There is a "Scandinavian" branch of "legal realism" which is a very remote cousin of the American branch--indeed, the label "legal realism" is probably more misleading, than illuminating, when applied to both--for reasons I'll explain when I finally finish the essay on both kinds for the Stanford Encyclopedia of Philosophy.)
A non-scholarly, and more superficial, gloss on "legal realism" will have to suffice for purposes here. Those who are realists about law, and more particularly, courts, think that the kinds of "legal reasons"--appeals to doctrine, precedent, statutory text, and the reasoning by analogy, by which courts bring the doctrine etc. in to contact with the facts of a case--that judges offer in their opinions largely obscure the actual grounds of decision. Legal reasons don't really explain the decisions; legal reasons are often indeterminate, and equally good legal arguments can be given for very different outcomes. What really explains the decision is the judge's commitment to non-legal norms (moral, political, economic).
My colleague Lucas A. (Scot) Powe, Jr. has a pithy way of expressing the idea. He likes to say: "Anyone teaching constitutional law who discusses only the doctrine is guilty of educational malpractice." (For a detailed case in support of this view, see his book on The Warren Court and American Politics [Harvard University Press, 2000].) Why malpractice? Because such a teacher will not equip his or her students to advise clients intelligently about constitutional law issues, since what courts do with these issues, on the realist view, has far more to do with extra-legal political and related considerations than with doctrine.
Suitably qualified (for the full scale of the qualifications, see my Blackwell essay), I find it hard to fathom that anyone disputes the truth of legal realism (lawyers don't, it's strictly some academics). It should hardly be surprising that legal realism is the correct descriptive account of appellate decision-making, if only for the simple reason that the cases selected for appellate review are disproportionately the ones where the legal reasons are indeterminate, and so the necessity for political and moral judgment is inescapable. (Yes, yes, I realize that Dworkin and his 3 [or is it 4?] followers have a theory according to which these judgments are themselves legal, but the theory is so bad, I'm discounting it here, sans argument.)
It's hard not to feel that our public culture, and our public discourse about law, would be a lot healthier if the truth of legal realism were more widely acknowledged. Consider the battle over federal court nominations: if we're realists, then we can say plainly that these are battles over life-time appointments of government agents who will be called on to make moral and political judgments, by which the force of the state will be brought to bear against the parties so judged. Ergo, it is perfectly reasonable, indeed, appropriate, for Senators to oppose nominations on moral and political grounds. The surprising thing, then, about the defeat of the Estrada nomination is not that he was defeated, but that so many others were given a free pass. These aren't battles over appointing the best "legal technicians"; these are battles over the appointment of mini-legislators. If the President doesn't nominate reasonably bipartisan legislators to the federal appeals courts, a Senate with a differing political cast of mind shouldn't approve any of them. Isn't it that simple? Well, it is if you're a legal realist.
UPDATE: Stuart Buck has "responded" in a fashion to this posting, but without it appears reading the linked essay and so without noting any of the "suitable qualifications." In particular, it is not the thesis of legal realism that "personal ideology" (as Mr. Buck puts it) determines the decision; it is the thesis that non-legal norms determine the decisions. This is obviously compatible with lots of unanimous decisions.
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