One worthy objective of reform is to contain, to keep within reasonable limits, the partisan contamination of election administration and dispute resolution.  Particularly distressing has been the suspicion settling on the judiciary, its reputation smudged by imputed partisanship from Bush v. Gore to state court decision-making that seems to correlate closely with the political affiliation of judges.  A longing for neutrality and expertise has led to proposals to shame the judiciary into more respectable performance.

    One such proposal, by Professor Ned Foley, is to establish an informal Amicus Court, whose three members include one member from each major party and a third independent. "Let’s Not Repeat 2000," Legal Times (April 21, 2008).  The Court would review election disputes, and its judgment, rendered in opinions (possibly with dissents) and submitted as an "amicus" to the official reviewing tribunal, would flag for fair-minded observers and the public what a neutrally, expertly determined result might look like.  The regular courts would have to feel the pressure; party-line decision-making out of step with the Amicus Court benchmark would be conspicuous, raising perhaps the level of the suspicious.  A shaming like this, experts v. the hacks-in-robes, might make a qualitative difference to judicial performance.  This could bring closer the day when specialized election panels are established to do the work of impartial adjudication of election cases.

     Would an "Amicus Court"—what Heather Gerken calls a "shadow institution"—do what she and Professor Foley hopes, which is to "remind us that a better alternative exists"?  "Out of the Shadows," Legal Times (May 5, 2008) at 62.

     Expertise and neutrality are obviously not one and the same, and it is a mistake to confuse them.  Hard political commitments need not, of course, be partisan commitments; talented and learned individuals may well develop expertise and cultivate a reputation for it, as ways to effectively pursue those commitments.  Expertise can be a means and not end.  Expertise is valuable.  It is not a guarantee of neutrality.

     Foley argues the advantages of having the decision-maker sport a judicial temperament.  "The key attribute, in addition to high public stature, (so that their opinions would carry as much clout as possible with actual courts), would be a virtuous judicial demeanor."  He is confident that there is a secure supply:  he notes Lloyd Cutler and Erwin Griswold but no living examples.

     One living example is James Baker—the Baker who commanded Bush’s troops in Florida and led the President’s successful and litigious march to the White House is a Washington Wise Man par excellence.  His demeanor is unshakably virtuous, or so we should conclude after he survived to serve the nation virtuously after both the Florida experience and, before that, his direction of the Bush 1992 Presidential campaign from the taxpayer-funded perch of the White House Chief of Staff’s office.  Baker is enormously talented and he has served his nation in many capacities:  no question there.  Neither is there much question that he has shown how, in Establishment terms, "virtuous judicial demeanor" is fully compatible with a record of loyal service to partisan causes.

     Which brings us to his later appearance on the Carter-Baker Commission, to which the Supreme Court gratefully turned when seeking out support for Indiana’s Voter ID law.  The Commission is not an Amicus Court, but it served, in the ID debate, a similar function of bringing reputation and impartiality to bear on a divisive issue.  It established a baseline for an acceptable, reasonable outcome, offering the seal of approval of an ex-President and an ex-Secretary of State directing the honest endeavor of a "Commission."  Its reasoning was not the chief source of its credibility; it had authority to offer, the "say-so" of luminaries. 

     And yet all the good press and the glorious resumes can cloud over the fair point that, eager as we are for the dependable referee, we see what we choose to see.  In the case of the Carter-Baker Commission, the good press it routinely enjoys is bare of any reference to the bitter disagreements on the Commission over the voter ID issue.  Someone might reply:  dissents count, as they would in any Court, so long as we can read them.  But these dissents, Spencer Overton’s in particular, reveal that the flaw was not only one of reasoning.  The flaw was politics—the politics of a body consciously striving to make its mark with an outcome—a "Commission" decision—it could hold up as judiciously reached and a credit to its charter.  To get there, it was not thorough in the collection of data or the consultation of experts, and it was remarkably harsh toward dissenters, limiting them to 250 words of official defense of their positions. 

     Not everybody sold on the notion of "expertise" or "neutrality" would welcome this form of politics as superior to the partisan kind.  At least the partisans have nowhere to hide.  Luminaries can seek cover in their own reputations and rely on their good name to deflect hard questions about what was truly going on "in Chambers."  The public is asked to buy the product on the strength of the brand name. 

     This is the very purpose of the Court—to generate a baseline opinion, distinguished by its authors and not necessarily by its reasoning, by which to influence the output of a "regular court."  Regular judges would worry about disregarding the preferences of the disinterested experts, and Foley is clear about how this should work:

Unanimity among the amicus judges would show how to resolve the case without partisanship.  But even a divided ruling from the Amicus Court, given its independent tiebreaker, would cast a salutary shadow over the actual court’s deliberations. If the actual result differed from the Amicus Court’s, the divergence would be questioned. To avoid such scrutiny, the actual judges might follow the Amicus’ Court’s outcome and reasoning.

     Assuming that it is true that unanimity would establish the "nonpartisan" alternative—and this is far from clear, since this conclusion rests on a number of assumptions—why should a divided opinion force the hand of a regular court?  Foley believes that it is best if the "actual judges," to avoid criticism, "follow the Amicus Court’s outcome and reasoning."  Others might question whether better judging will be produced by a subtle form of intimidation as judges scurry to avoid the "scrutiny" for failing to heed the counsel of the Wise.

     Now there are certainly grounds for criticism of the judiciary’s performance in election law cases.  The answer, concededly not a simple one or certain of success, lies in greater will and more effective mobilization around the fair causes of the discontent.  There are alternatives to be considered and promoted, including the establishment of election courts that can develop deep experience with election law cases and, eventually, a tradition of scrupulous professionalism. 

     Turning the work over to luminaries—to private or "shadow" bodies of eminent Americans—seems like a gaudy promise of neutrality and expertise without accountability.  When the luminaries have spoken, who will talk back?  And to whom in the end do the luminaries answer, charged only with sharing the benefits of their virtue?

 
Bob Bauer