Judging Judges

Welcome to Politics Bites, where every afternoon at It's A Free Country we bring you the unmissable quotes from political conversations on WNYC. On the first day of the new U.S. Supreme Court term, The Brian Lehrer Show looked at the shifting perception of bench.

Keith Bybee, judicial scholar at Syracuse University College of Law and author of  All Judges Are Political—Except When They Are Not: Acceptable Hypocrisies and the Rule of Law, said Americans' ideas about their judges have changed over time and are becoming more political. Judges themselves—whether sitting on the U. S. Supreme Court or in a tiny county courthouse—are becoming more political too, he said.

In the 1920s, the U.S. Suprmeme Court regularly handed down unanimous decisions. Split decisions along party lines are the norm now. 

Part of what's fueling the tilt toward politics is the way judges are selected. While Supreme Court Justices are nominated by presidents and confirmed by the U.S. Senate, criminal and lower court judges often run for election.

Almost 90 percent of judges at the state level in 39 states have to stand for election in one form or another as a way of either to get on the bench or to state on the bench. And over time we are seeing these elections are becoming increasingly indestinguishable from ordinary partisan contests.

It is hard to keep politics out of the process, he said.

Even when you go through a merit system you have to be connected in some way. But more importantly, to stay on the bench, ususally you have to survive just a retention election. And in order to keep a retention election a sleepy, low-key affair, judges will often engage in behavior to make sure they stay below the radar, that they don't make a controversial decision and that means for example, often times much harsher sentencing practices on the run-up to a retention election. For a judge, it makes more sense to mete out a heavier sentence than to take a risk that some kind of leniency might lead to a bad outcome right before what should be a slam dunk reelection.

But Bybee thinks the fact that Americans rely so much on courts to make decisions about civic life is a good thing, even if judges are in some ways political.

It's a real achievement that we take a lot of our conflicts to the court, that we bother to clothe our personal and political interests in legal terms, rather than just shouting at each other in the streets.

Listen to the entire conversation on The Brian Lehrer Show.