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The Honolulu Advertiser

Posted on: Thursday, June 12, 2003

Court battles in U.S. Senate have big stakes

One of the least appealing aspects of the behavior of the U.S. Senate has been its handling of federal judicial nominations. In a game of what appears to be "gotcha," Republicans have blocked Democratic nominations and Democrats have responded by doing the same to GOP nominations.

This appears to be not much more that petty partisanship. But a recent study by two professors — David Schkade and Cass Sunstein — suggests that something else is afoot.

In an article in The New York Times, the two said they studied thousands of votes by three-judge appellate panels. Bottom line: Judges appointed by Republican presidents show more conservative voting patterns than Democratic appointees, who tend to be more liberal. That's hardly surprising, but it does suggest that this is more than a fight over patronage; it is a fight over principle.

But it gets more subtle than that. If two of the three judges happen to be conservative, the third, no matter how liberal, tends to go along. The reverse is also true.

When the law is clear, ideology gets set aside, the authors say. But in many cases, it is ambiguity that brings the case to court in the first place. In which case, ideology does matter.

And while senators should be able to put ideology above them, it is clear, the authors conclude, that they are battling not just about politics, but the very shape of the law.