Judges’ Political Diversity May Help Justify Long Service

By Nick Levinson

When a judge serves for many years past when their appointer or main political backer serves, their ideology tends to add diversity to their political wing, because they hark to an earlier time in the politics of electoral politics.

The effect of time is that the appointer has certain concerns but can’t anticipate some of the concerns that will prevail just a few years later and so can’t select a judge who will meet both sets of concerns, leading to some unexpected diversity even within one ideological side.

Thus, we wind up with a conservative judge who differs from conservatives who were recently elected at the time of decision; and we wind up with a liberal judge who differs from liberals who were recently elected at the time of decision. More longitudinally, judges on the same side of the divide but who were appointed in different political eras likely subscribe to different versions of conservatism or liberalism.

That political diversity on both sides likely increases the political distance of the judges from the nonjudicial electeds, narrows the closeness of judges to each other even across a conservative-liberal divide and eras because judges in a court likely try to bond with each other in shared judicial interest while nonjudicial electeds who have left office and their successors have less pull on the judges, and advances the fairness of the courts and the perceived fairness of the courts.

A possible analytical complication is for a Federal judge appointed by a President of one political party and supported by the U.S. Senators of the State wherein the judge is to serve if the Senators are both of the party opposite the President’s; and there likely are similar situations for some non-Federal judgeships. At least at the Federal level, there is reputedly Senatorial courtesy that a nomination will not go forward unless the Senators of the relevant State indicate to colleagues their support for the nominee, although I’m not sure if that courtesy applies across the divide now, if ever.

This applies to any long-term judgeships, long enough to outlast the terms of office of the appointers or, in the case of elected judges, principal political backers.

This may depend on randomness in the assigning of judges to cases, but that randomness is rare.