Abstracts » Law

A modest reply to Judge Wald

Article Abstract:

Judge Patricia M. Wald's criticisms of a proposal to base the selection of federal Courts of Appeals panels on politics rather than randomly are off target in some respects. Her assumption that panel members are able to keep their political views in check even when they share an ideological outlook defies the reality. Judicial decisions have a political component that cannot be ignored. Basing selection on politics would serve rather than undermine constitutional objectives.

Wald, Patricia M.

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A modest proposal for improving American justice

Article Abstract:

The quality of justice dispensed by the US Circuit Courts of Appeals could be improved by assigning judges to panels in a politically balanced fashion. Judicial assignments are now determined randomly, which means that three-judge panels are often entirely liberal or entirely conservative. This leads to too many extreme opinions. Extremes can be limited by ensuring that at least one judge on every panel has a political background different from that of the other two.

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A response to Tiller and Cross

Article Abstract:

Emerson H. Tiller and Frank B. Cross analyzed certain US Courts of Appeals decisions and concluded that the selection of three-judge panels should not be random as at present but based on whether the President who appointed them was a Democrat or a Republican. This proposal is wrong on two counts: because it exaggerates the influence of politics on the panels' decisionmaking, and because it underrates the constitutional objections to politicized judicial selection.

Tiller, Emerson H., Cross, Frank B.

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