Ideology in the Language of Judges: How Judges Practice Law, Politics, and Courtroom Control

By Susan U. Philips | Go to book overview
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Attorneys want certain kinds of judges on the bench who will interpret rules in a particular way because such matters affect their individual law practices. . . . In judicial selection, as in the handling of legal affairs generally, attorneys act as spokesmen of the social and economic interests they represent. ( Watson & Downing 1969: 43, quoted in Schmidhauser 1979: 33)

Just as there is little concern with or evidence of political party ideology influence on trial court judicial behavior in literatures on judicial behavior, so too there is little concern with organized bar political ideological influence on judicial behavior. The reasons this is so are clearly related to pervasive, deeply rooted views on the differences between the roles of appellate and trial court judges that the Tucson judges articulate so clearly. Appellate justices, with broader powers, can implement political ideologies, whereas trial court judges, with narrower powers, are not expected to be able to implement their political ideologies. Dolbeare's views on this issue seem typical:

We have found the criteria for selection of judges here to be service to the party rather than policy preference or program orientation of any kind. We have found no reason to consider this lack of policy concern to be unique to partisan election courts, and we have seen that participants in local politics generally are unlikely to seek to influence selection of judges on a policy basis. This is only consistent with most assumptions about local politics, which are to the effect that the motivations of activists are more likely to be extractive (jobs, contracts, power, patronage, etc.) than programmatic (ideological, policy preferences, comprehensive programs, etc.). The political activist whose motivation stems from ideological or program goals is more likely to focus on state or national levels of government, suggesting in effect a continuum of relatively greater proportions of policy orientation among activists from the local through the state to federal levels. Some participants at the local level are active there because of ideological or program goals, of course, but the proportion of persons taking part for purely economic self-interest or other extractive purposes seems highest at the local level. ( 1967: 124 (emphasis added))

In other words, in Dolbeare's view, whether judges are appointed as a reward for labor for the political party or as a reward for organized bar labor, the motives of the rewarders and the rewarded are "extractive," not ideological, at local political levels. However, as is typical in non-Marxist treatments of political ideology, Dolbeare equates the ideological with explicit intentionally motivated policy orientations that can be associated with recognized institutionalized organizational structures. He does not allow, as Marxists do, that much of what is "ideological" does not have these qualities but is rather hidden, covert, unconscious and unrecognized, and effective by virtue of such qualities. I find it stunning that the same processes acknowledged to be ideologically laden at the appellate court level are widely asserted to be free of ideology at the trial court level. If trial court judges are so lacking in agency, why have them at all? If judgeships are merely extractive spoils, just another set of jobs to go after, why not go after spoils that are easier to get?


Conclusion

The main ideological stance of the Tucson judges with whom I worked is that their work, their legal action on the bench, is nonideological. They take this position be

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