Discretion, the Rule of Law, and Political Ideology:
Last week, I posted the facts of the Third Circuit's en banc decision in Pierre v. Attorney General and asked readers to chime in with what they would do if they were judges. Recall that this was the case with the inmate who was to be deported to Haiti where he would likely starve to death for lack of medical attention. The legal question was whether this amounted to "torture" given the requirement that torture must be an intentional act.
The results were quite interesting in light of the political breakdown of the respondents. Among readers who self-identify as politically right of center, 73% would vote that Pierre must go. Among readers who self-identified as neither conservative nor liberal, 68% would vote that Pierre must go. On the other hand, there was a very different trend among readers who identified as politically left of center: Among those readers, only 35% would vote that Pierre must go. (There were 1,563 votes altogether, with 738 from right-of-center readers, 429 from left-of-center readers, and 396 from "other".)
Why these differences? Surely one reason was that both the facts and the legal questions had a certain political valence. Political conservatives would be more likely to see Pierre as unsympathetic and not deserving of mercy: After all, he had tried to kill his girlfriend, and he was only asking to be the permanement ward of the state because he had failed in his effort to commit suicide. On the other hand, political liberals would be more likely to think of John Yoo's memos and debates on the meaning of torture, if not capital punishment more broadly (which liberals oppose twice as frequently as conservatives). So there was clearly some political valence in the case that could explain the differences.
At the same time, I think there is a second reason: There are recognizable differences between how liberals and conservatives today tend to talk about and think about the role of the judges. Of course, I'm painting with a super broad brush here, and the broad brush can't capture a lot of nuance. But generally speaking, conservatives today are more likely than liberals to envision a judge's job as following the law. In contrast, liberals today are more likely than conservatives to see a judge's job as doing justice where the law is unclear.
To some extent, this isn't news. Recall the Rasmussen poll last fall that asked voters "Should the Supreme Court make decisions based on what's written in the Constitution and legal precedents or should it be guided mostly by a sense of fairness and justice?" The differences between Obama voters and McCain voters were stark: 82% of McCain voters thought the Supreme Court should follow the written Constitution and legal precedents, while only 29% of Obama voters thought so. In contrast, 11% of McCain voters thought the Supreme Court should follow the Justices' sense of fairnesss, while 49% of Obama voters thought they should.
I suspect we're seeing some of that dynamic in the reader poll in the Pierre case. In the case of Pierre, I think the mindset of following the law tends to lead to a pretty clear result that courts should not interfere with his deportation. The regulation required intent, and Pierre didn't claim that anyone would intentionally torture him; nor did he claim that anyone would know he was starving to death. Rather, he made a claim as to the likelihood of an event, arguing that what he subjectively would likely experience would be pain equivalent to what a person would experience if intentionally tortured. It seems to me that this just isn't enough under the law; indeed, the en banc Third Circuit voted unanimously not to intervene.
The results were quite interesting in light of the political breakdown of the respondents. Among readers who self-identify as politically right of center, 73% would vote that Pierre must go. Among readers who self-identified as neither conservative nor liberal, 68% would vote that Pierre must go. On the other hand, there was a very different trend among readers who identified as politically left of center: Among those readers, only 35% would vote that Pierre must go. (There were 1,563 votes altogether, with 738 from right-of-center readers, 429 from left-of-center readers, and 396 from "other".)
Why these differences? Surely one reason was that both the facts and the legal questions had a certain political valence. Political conservatives would be more likely to see Pierre as unsympathetic and not deserving of mercy: After all, he had tried to kill his girlfriend, and he was only asking to be the permanement ward of the state because he had failed in his effort to commit suicide. On the other hand, political liberals would be more likely to think of John Yoo's memos and debates on the meaning of torture, if not capital punishment more broadly (which liberals oppose twice as frequently as conservatives). So there was clearly some political valence in the case that could explain the differences.
At the same time, I think there is a second reason: There are recognizable differences between how liberals and conservatives today tend to talk about and think about the role of the judges. Of course, I'm painting with a super broad brush here, and the broad brush can't capture a lot of nuance. But generally speaking, conservatives today are more likely than liberals to envision a judge's job as following the law. In contrast, liberals today are more likely than conservatives to see a judge's job as doing justice where the law is unclear.
To some extent, this isn't news. Recall the Rasmussen poll last fall that asked voters "Should the Supreme Court make decisions based on what's written in the Constitution and legal precedents or should it be guided mostly by a sense of fairness and justice?" The differences between Obama voters and McCain voters were stark: 82% of McCain voters thought the Supreme Court should follow the written Constitution and legal precedents, while only 29% of Obama voters thought so. In contrast, 11% of McCain voters thought the Supreme Court should follow the Justices' sense of fairnesss, while 49% of Obama voters thought they should.
I suspect we're seeing some of that dynamic in the reader poll in the Pierre case. In the case of Pierre, I think the mindset of following the law tends to lead to a pretty clear result that courts should not interfere with his deportation. The regulation required intent, and Pierre didn't claim that anyone would intentionally torture him; nor did he claim that anyone would know he was starving to death. Rather, he made a claim as to the likelihood of an event, arguing that what he subjectively would likely experience would be pain equivalent to what a person would experience if intentionally tortured. It seems to me that this just isn't enough under the law; indeed, the en banc Third Circuit voted unanimously not to intervene.