Our appellate courts are too politicized. Here’s one way to fix it.

The prospect of a conservative ideologue such as Judge Brett Kavanaugh—Donald Trump’s second nominee for the Supreme Court—exposes the increasing politicization in our appellate system. Through the Executive and Congress, we already have two layers of politics in our legal system. We don’t need a third.

When considered alongside Neil Gorsuch, Trump’s judicial nominees appear to be selected, not on some technocratic standard, but instead on the nominee’s willingness to abide by the policy preferences of the Federalist Society—hardly a recipe for an impartial jurist.

This isn’t meant to imply that Trump started the politicization of the federal courts or that it’s comparatively recent phenomenon. In the last half-century in judicial nominations, both parties have dirty hands, and for a long time it’s been a very cynical game of realpolitik. Both parties would actually like to find some way out of this deadlock, but they are locked in a terrible, extremely difficult stalemate, in which the worst problem is the purely strategic logjam; they know they’ve broken the federal judiciary, but they also know that any solution that wouldn’t give one side an unacceptable advantage seems unavailable.

There is no place for an ideologue in the appellate system

To understand how to break through this logjam, it’s worth reviewing the basic rules and purpose of an appeal. Appeals are meant to give the losing party at the trial court an opportunity to correct bias in fact-finding and the misapplication of the law to the established facts. Everyone has a right of appeal from a district court decision, as there needs to be a place to go with runaway juries, testimony flaws missed, or wrong application of the law.

Deference is historically and routinely given to the fact-finding of assumed unbiased lower-court judges, who observe firsthand the demeanor of “fact witnesses” and “expert witnesses” as they testify confidently, hesitantly, or inconsistently, to introduce facts and expert opinion. The appeal should not be a place where political ideology—from either side—trumps a dispassionate reading of the facts by the trial court judge as they apply to the law.

If only Kavanaugh showed such deference to the original factfinder. In one opinion overturning the FCC’s finding that a vertically integrated cable operator violated the Cable Act’s nondiscrimination standard, Kavanaugh wrote that, because Congress used a single antitrust phrase in a regulation meant to plug a gap in antitrust enforcement, the higher antitrust evidentiary standard—and not the nondiscrimination standard—should apply.

Kavanaugh has has proven through his competition-related opinions in Anthem-Cigna, Whole Foods-Wild Oats, and Comcast v. FCC, that he is willing to play fast and loose with facts and science, disregarding the record below, to achieve an outcome that suits his free-market ideology. This is the opposite of deference to the original factfinder, and it perversely introduces bias in a process designed to achieve the unbiased pursuit of justice. (Disclosure: I was Tennis Channel’s expert in the discrimination case against Comcast.)

Kavanaugh’s judicial demeanor in this regard represents an abuse of the appeals process from a good-governance perspective. It is, ironically, the use of judicial activism in pursuit of a conservative agenda. And like most governmental abuses, it can be adopted by the opposition when it has power, leading to a government that is no longer ordered by normative behavior. The loser in such a tit-for-tat game, no matter who is in power, is the American citizen.

Kavanaugh is a symptom of a larger problem relating to the appeals system

Although Judge Kavanaugh was not involved in the recent American Express antitrust litigation, the appeal turned on a disregard of settled facts by the Second Circuit in much the same manner as in Anthem-Cigna and Whole Food-Wild Oats; this occurred in American Express despite the district court judge’s having the benefit of hearing all the testimony regarding the intricacies of the credit card market. It’s the equivalent of displacing the first base umpire’s unobstructed view of a bang-bang play at first base with the perspective of commentators sitting in the stands who hold preexisting views about whether the runner should have been safe or out given his running style or where he hit the ball.

For the non-ideological slice of Americans in the political center, we are not rooting for plaintiffs or defendants in any particular case. The optimal outcome for those without a political dog in the fight is that meritorious cases prevail and weak cases fail. This is achieved by having an unbiased, technocratic fact-finder, dutifully apply the law to the facts at hand.

If hyper-ideological appellate judges such as Kavanaugh merely serve to inject a layer of politicization into what should be an apolitical inquiry, what can be done?

Weakening the grip of the ideologues

For starters, we should tighten the requirements for reversal. Under current law, a successful appeal requires merely two of three reviewing judges to see things according to the losing party. In today’s hyper-political climate, the number two seems too low. In particular, the need to compromise under the current “win-by-one-vote” regime is exceedingly weak, leading to extremist views. Assuming that the number of ideologues is a minority of the judiciary, ideology could get watered down a fair bit just by having bigger panels.

Consider a hypothetical appellate circuit of nine judges, two of which are conservative ideologues who are willing to overturn any decision—regardless of the fact pattern—in favor of an antitrust plaintiff. For a given random panel of three judges, the two ideologues will be selected (and thus have a voting majority) with a probability of 8.33 percent. There are three paths to get the two ideologues on the three-judge panel: (1) miss, hit, hit; (2) hit, hit, miss; and (3) hit, miss, hit. The probability of each path is 2.78 percent. Summing the probabilities across the three paths yields 8.33 percent. That probability might seem acceptably low, but it means that nearly ten percent of pro-plaintiff decisions will be reversed in such circuits for no reason other than politics.

To give more deference to the original fact-finders, appeals should require the consent of three of five or even four of seven judges. This would reduce the chances of drawing a majority of ideologues. A larger appellate bench will also assure claimed legal errors are based on mainstream interpretations of statutes and the Constitution, rather than readings from the fringe.

One might be concerned that this higher burden for reversals would make it more difficult to reverse ideologically driven mistakes at the district-court level. But the trial judge can only be as much of an ideologue as her controlling appellate court opinions allow. The trial judge will not, as a rule, overtly cross the appellate court’s views, and if she does, she’ll get reversed. So the chance of having a rogue district court judge having the opportunity to mess up a valid case via ideology is not only rarer compared to an appellate court, but also subject to reversal as a matter of right. In contrast, the Supreme Court provides much less guidance to the appellate courts because there is no appeal as of right from them, and because the Supreme Court handles fewer cases.

Another potential concern is that larger panels would entail greater resource costs in the form of additional federal judicial personnel. The courts already claim that they are overwhelmingly overworked, but Congress stubbornly refuses to add more judges. Under the current regime, adding more judges gives one’s opponents more seats that they can fill. To the extent that more judges per panel would depoliticize appeals, however, it might not be so hard to convince Congress just to add more judges.

Under this higher burden for reversals, fewer district court decisions would be overturned, but it would not change the opportunity to launch an appeal. If the appeals courts were so constrained by this higher standard, then the stakes for presidential appointments would be lowered considerably. “Call-ups” from the Circuit courts to the Supreme Court could be based on technical brilliance, not on one’s political ideology. Courts could emerge as an unbiased but supple interpreter of the laws handed down by Congress.

Stopping Kavanaugh would be a good thing. But it wouldn’t solve the politicization of our appellate courts. If Trump wants to stack the courts with ideologues, the best protection for liberals is to reduce an ideologue’s power to inject his or her politics into judicial rulings. Recognizing that they could soon be the party out of power, conservatives just might go along with such a compromise.

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