260. How do you like your chances?

If not for the bicoastal bias of the national media, which showers so much attention on the Ninth Circuit, the Sixth might long ere this have achieved the title of most-ridiculed circuit court.  As it is, the Sixth, which covers an odd arc of the country from Soulsville to Hitsville (and beyond), has had to put the fun back in dysfunctional in the obscurity of flyover country.  (See post 234 and post 210.)

The Cincinnati Enquirer recently did a study on the death penalty decisions of the Sixth Circuit, and you ought to look at it before it disappears behind the paid-archive walls.  They have this cool graphic: click on the face of the President, and you see a presentation of his appointees' votes in death penalty cases.

The bottom line?  Well, you guessed it:

Judges appointed by Republican presidents voted to deny inmate appeals 85 percent of the time.

Judges appointed by Democrats voted to grant at least some portion of those appeals 75 percent of the time.

Republican appointees dissented from majority opinions 25 times, always arguing against the inmate. Democratic appointees dissented 29 times, all but once arguing for the inmate.

What to make of it?  The Enquirer quotes Richard Dieter of the  Death Penalty Information Center saying: "It makes blind justice look like part of the political system."  Well, you might be asking yourself, could that be because the federal government is part of the political system, by definition?  But that wouldn't be quite fair. Dieter was just using lawyer talk to convey the idea: "I can't tell you what I really think without pissing off the judges, but I'm sure glad to get my organization a mention in  your Sunday edition, so here's a quote."  His website presents the data in more conventional tabular form.

(Did Dieter miss the career fate had planned for him when he didn't join the Weight Watchers management team?)

I didn't see a total number of cases considered, but my guess is that the trends are so pronounced that conclusions can validly be drawn from even a relatively small sample.  But what conclusions should we draw?  That the Sixth Circuit judges are all partisan hacks? 

Well, maybe.  No one gets to be a federal judge without demonstrating some of the traits of hackdom.    After all, why would any President or Senator guarantee you a fat salary for life no matter how badly, or how little, you do your job, unless you first made yourself exceptionally useful to them?  But while there is an obvious touch of defensiveness in the way judges bristle at the very thought of doing something as vulgar as "politics" from the bench, in general they make a point of not taking direction from merely elected officials.

Besides, some prominent Republicans have opposed the death penalty, and a certain well-known Democratic governor of Arkansas used an execution as a campaign prop.  (It worked, didn't it?)  When Republican felon-to-be George Ryan commuted all the death sentences in Illinois, Democratic Governor-elect Rod Blagojevich criticized him.  (Like a true process liberal, he criticized Ryan for the way he did it rather than for what he did: "'I think a blanket anything is usually wrong,' Blagojevich said.") 

Pennsylvania's former Republican Senator, reading the polls, started trying to soften his position on the death penalty a year before the election, seeking cover behind Catholic doctrine, which in general cannot be described as liberal.  (But it didn't work for Santorum, did it?  In matters of death, it's easier to prove you're for it than against it.)

So if elected officials feel comfortable bucking their party line on the death penalty, why would judges be uncomfortable doing the same?  A better explanation for the Sixth Circuit's statistics might be psychological, as hinted by the Enquirer, which characterizes the Sixth Circuit as "deeply divided", meaning that it's staffed by people who loathe one another, and indeed make a convincing case for each other's loathsomeness.  (See post 234.)  

The Enquirer even found a former member of the court to bad-mouth it in public, something I can't recall ever seeing before.   Those people really don't like each other.  But still - ordering another person's death just to spite a disagreeable coworker?  I mean, maybe once or twice, sure.   Who wouldn't?  But we're talking about a lot of decisions over a long period of time.  

Ockham's Razor says that one should avoid multiplying hypotheses unnecessarily: the simplest answer is usually the best.  And, slashing away crudely, I'd say the real explanation for the Enquirer's numbers is simply that the votes of the Sixth Circuit judges have less to do with political affiliation than with the judges' personal beliefs. 

That is, judges who support the death penalty in general vote to uphold it in individual cases, while those who oppose it look for any way to overturn it.  That sounds far too banal to count as an insight, but it actually suggests something far more disturbing than the Enquirer dared to suggest.

It's this: What's going on in the Sixth Circuit may be legal - though from time to time I have my doubts - but it's not the law.  There is no death penalty law in the Sixth Circuit.  What we're seeing instead is the ugada principle - the Clan Elder deciding who's entitled to a haunch of mammoth or a kidnapped girl by gesturing with his caribou thighbone and saying, "Ugh.  Uh.  Duh."  Which settled the matter.   (See post 106.) 

It's the General Stroessner principle - the tinpot dictator whose word was the only law his people had.  (See post 159.)  It's the very thing John Adams was decrying in his familiar phrase "a government of laws not men."  The death-row inmates of the Sixth Circuit are living under a government of men (and women), not laws.

What would be really interesting would be to chart the votes of the judges on issues one degree more subtle than the death penalty, like search and seizure cases, certifications of class actions against private businesses, mega-million-dollar jury awards, and the like.  I'm pretty confident similar patterns would emerge, even if the lineup of the judges shifted somewhat.  If so, it would show that death-row inmates aren't so very different from the rest of us, after all.

(Thanks to David Badertscher's New York Supreme Court Criminal Term Library blog for the initial link to the Enquirer story.)