Tuesday, December 19, 2006
Posted by Alan Childress
Susan Bandes (DePaul), right, has posted on SSRN her article, "Judging, Politics, and Accountability: A Reply to Charles Geyh." It will be published in Case Western Reserve Law Review in 2007. Here is the abstract:
This paper was written for a symposium on judicial accountability and independence, in response to Charles Geyh's paper, "Rescuing Judicial Accountability from the Realm of Political Rhetoric." Geyh's article is a valuable and ambitious effort to bring some substance and clarity to the overused, under-theorized notion of judicial accountability. In service of this goal, Geyh suggests a taxonomy for organizing judicial accountability into three categories: institutional, behavioral and decisional. He argues that sanctions for decisional errors may be appropriate in the rare instances in which those errors are not honest mistakes but deliberate usurpations of political power.
In this article I raise concerns about both the taxonomy and the defense of sanctions for intentional error. As to the first, I argue that Geyh's proposed taxonomy both overstates the demarcation among the types of accountability it lists, and fails to adequately define the underlying notions of politics and activism so essential to the author's argument. My second concern follows from the first. Without a theory for what counts as political in the sense of inappropriately non-judicial, it is difficult to evaluate whether willful disregard of the law should be characterized as a deliberate usurpation of political power or whether sanctioning such acts will further accountability's proper purposes. I conclude that it is neither possible nor desirable to isolate the category of decisions that are inappropriately political and deserving of sanctions.