"Ideological Warfare" on the Sixth Circuit:

Today's Washington Post features a front-page article detailing the effect of President Bush's nominees on federal appellate courts, focusing on the U.S. Court of Appeals for the Sixth Circuit. It's an interesting piece, as is this companion article on the politics of judicial nominations going forward, but I worry that it might exaggerate the ideological or partisan divisions among appellate judges, even if only because it focuses on the unusually divided Sixth Circuit.

The heart of the article focuses on the Sixth Circuit, and it portrays a Court unusually riven along ideological lines, particularly on criminal justice issues. This perception of the Court is widespread (indeed, I've blogged extensively about it), but the article suggests at least some judges see it this way too. It even quotes one judge to that effect.

Under 6th Circuit rules, full court, or "en banc," hearings are allowed in order to ensure "uniformity of the court's decisions" when separate panels of three randomly appointed judges disagree, or when questions of "exceptional importance" are at stake. But some of the court's Democratic appointees allege that the Republican-appointed majority is grabbing and reversing cases whenever those judges disapprove of the social consequences of the Democratic appointees' rulings.

"Anytime two of us show up on a panel and they don't like it, they yank it," said one Democratic-appointed judge on the circuit, who spoke on the condition of anonymity to avoid directly provoking colleagues. . . .

Ideological trench warfare is frequently on display in the 6th Circuit's austere fourth-floor hearing room in the Potter Stewart Courthouse here, which shifted to Republican-appointee control in mid-2005. Rulings sling around words such as "absurd," "rash," "meritless," "Pollyannaish," "unconscionable," "careless," "overwrought" and "alarming" -- from jurists on each side, directed at the judgments of colleagues appointed by the other political party. Tensions between Democratic and Republican appointees have become so intense that they no longer regularly lunch together at the city's University Club.

The story also discusses the impact of Bush nominees on the appellate courts as a whole. After eight years of judicial appointments by George W. Bush, Republican nominees are the majority of judges on most Circuits. This is what one would expect after eight years of a GOP President (and Republican control of the White House for 20 of the last 28 years). I've written about the current balance of nominees on the federal appellate courts and the likely effect of Obama's Presidency here.

I should note that the story contains one small error. It characterizes the Sixth Circuit's October en banc decision in Republican Party v. Brunner as a 9-6 decision decided along party lines, counting Judge Helene White, who was technically nominated by Bush, as a Democratic nominee as she had been a Clinton nomination to the Sixth Circuit and her nomination was part of a deal with Senate Democrats. Although some news outlets initially reported the decision as 9-5 or 9-6 (because, due to time pressures, the initial opinion was released before all of the judges had registered their vote or filed opinions), the decision was actually 10-6, and one Clinton appointee, Judge Ronald Gilman, voted with the majority. The Supreme Court subsequently overturned the en banc decision.

Is Arnold Evidence of "Ideological Warfare"?

The WaPo article I noted below on ideological divisions on the U.S. Courts of Appeals highlights the case of United States v. Arnold as an example of [how] President Bush's nominees have altered the ideological balance of the Sixth Circuit.

In June 2005, two federal appellate judges here ordered Joseph Arnold released from a 21-year prison sentence after ruling that there was no credible evidence he had threatened to shoot his girlfriend's daughter with a pistol.

But Arnold's relief was fleeting. Prosecutors appealed to all of the judges on the U.S. Court of Appeals for the 6th Circuit. And the full court, dominated by appointees of President Bush and other Republican presidents, reversed the initial appellate ruling, saying the evidence presented by prosecutors was sufficient to merit Arnold's conviction.

While there are quite a few cases in which the Sixth Circuit divided [purely] along political lines (several of which have been the subject of VC blog posts), Arnold is not among them. All four dissenters were Democratic nominees, and six of the seven judges who signed Judge Jeffrey Sutton's majority opinion in full were Republican nominees, but the seventh was Clinton-nominee Martha Daughtrey. Furthermore, two judges — Eric Clay (Clinton) and Richard Griffin (Bush 43) — concurred in part and dissented in part. [What confounds the Arnold-as-political-split narrative even further is that Judge Daughtery is generally considered a quite liberal judge Ronald Lee Gilman, who dissented, is generally considered the most moderate of the Clinton nominees to the court. So Arnold is not a case of a stereotypical right-left split.]

Another curiosity about the piece is that there is little mention of the longstanding nature of ideological divisions on the Sixth Circuit — divisions (and associated allegations of judicial misconduct) that pre-date the confirmation of many Bush nominees. Nor is there any mention of allegations that some activists sought to delay the confirmation of Bush nominees to the Sixth Circuit with an eye toward influencing particular cases. [My point is not to down play the division on the Sixth Circuit divisions — I've posted on it extensively (and was even quoted in the Post story. But I do not think the Sixth Circuit's divisions are due to Bush's nominations.

Ed Whelan has more on the article here.

UPDATE: I've revised the post a bit as indicated.

FURTHER UPDATE: It also seems to me that Arnold is a relatively poor example of how Bush's judicial nominations have altered the Sixth Circuit's balance. As discussed above, Arnold did not involve a typical ideological split among the judges. Nor does it represent a recurring issue on which the court's doctrine has changed over time as the court's ideological balance has shifted. In this regard, I think a case involving an ineffective assistance of counsel claim and/or the application of AEDPA to habeas claims would would have better illustrated the Post article's point. These are issues that clearly divide the Democratic and Republican nominees on the court, and they are issues on which the Court's approach has changed due to changes in its composition.

Patterico has more on the Post's treatment of the Arnold case here.