by Allan Griffey, 2L Note Candidate
What has the reputation of being fair, competent, and independent? The federal judiciary. Judge Hamilton, of the Seventh Circuit, assiduously explains how partisanship in the executive and legislative branches of the federal government can directly, or indirectly, influence the federal judiciary in his article in the Indiana Law Review. Hon. David F. Hamilton, Federal Courts and Partisan Conflicts, 50 Ind. L. Rev. 127 (2016) (available at https://mckinneylaw.iu.edu/ilr/pdf/vol50p127.pdf). Judge Hamilton’s article contemplates to answer: (1) how partisanship in the other branches of federal government affect the federal judiciary; (2) what the federal judiciary can do to protect itself from the partisanship of the other branches; and (3) what the federal judiciary can do, if anything, to avoid worsening the affairs of the other branches.
In undertaking the first question, Judge Hamilton calls to attention that partisanship from the other branches becomes highly visible during federal judiciary appointments. He illustrates this point by referencing his 2009 nomination to the Court of Appeals where U.S. Senate committee procedures slowed his confirmation. Additionally, the manner in which nomination and appointments are being handle by the executive and legislative branches of the federal government, Judge Hamilton argues, is “increas[ing] the temptation for judges and justices to make strategic decisions about when they will retire or take senior status.” Thus, threatening the function of the federal judiciary nomination and confirmation process.
In addressing the second question, Judge Hamilton proposes that if federal judges thoroughly do their job, avoid self-inflicted wounds on the judiciary’s reputation, and show the American public, then the federal judiciary will be protected from the partisanship of the other branches. By avoiding conflicts of interest and controversial off-the-job conduct, the public’s perception of a partisan judiciary should diminish. Further, refraining from “rhetorical incivility,” which Judge Hamilton describes as excessively harsh rhetoric in judicial opinions, is crucial to the judiciary’s aspiration to protect itself from partisanship.
Lastly, the article suggests that federal judges should remain humble and bear in mind the law of unintended consequences when deciding on doctrines that directly affect the political system. These particular doctrinal areas of the law include campaign finance, voting rights, state redistricting, and the extent of the political question doctrine. In conclusion, Judge Hamilton’s article brings into perspective the effects of executive and legislative partisanship on the federal judiciary.